          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE

                           DECEMBER 1999 SESSION



STATE OF TENNESSEE,                       )
                                          )
                                                             FILED
                                                  NO. 01C01-9812-CR-00490
       Appellee,                          )             M1998-00073-CCA-R3-CD
                                                            March 17, 2000
                                          )       DAVIDSON COUNTY
VS.                                       )
                                                          Cecil Crowson, Jr.
                                          )       HON. SETH NORMAN,
                                                         Appellate Court Clerk
DEE W. THOMPSON,                          )       JUDGE
                                          )
       Appellant.                         )       (Aggravated Rape - 3 cts.)



        OPINION CONCURRING IN PART AND DISSENTING IN PART


       I concur in most respects with the excellent opinion by my colleague;

however, I would conclude the defendant has failed to establish prejudice regarding

the admissibility of prior convictions.



       Specifically, the defendant has failed to show that any error more probably

than not affected the judgment to his prejudice. See Tenn. R. Crim. P. 52(a); Tenn.

R. App. P. 36(b). Just as in State v. Taylor, “[t]here is nothing in the record and the

defendant presents no argument concerning the substance of his contemplated

testimony.” 993 S.W.2d 33, 35 (Tenn. 1999). Although an offer of proof is not

required in order to preserve the issue for review, it may be the only way to

demonstrate prejudice. State v. Galmore, 994 S.W.2d 120, 122 (Tenn. 1999). The

majority concludes that a proffer from the defendant would be a mere “formality.”

I am unwilling to make this leap. There are no pre-trial statements of the defendant

or any other jury-out statements of defendant which would indicate his contemplated

testimony. The fact that the “defense theory” was to attack the victim’s credibility

does not necessarily indicate what the defendant’s testimony would be.

Accordingly, the defendant has failed to demonstrate prejudice.
       There is harmless error for another reason. However, it is somewhat difficult

to analyze this harmless error issue as we must perform mental gymnastics. We

must first assume that defendant would testify if the trial court properly ruled on the

admissibility of prior convictions. See Galmore, 994 S.W.2d at 123. The majority

concludes that the escape and voluntary manslaughter convictions would be

admissible. The majority then concludes admissibility of the first degree murder and

aggravated assault convictions would be improper. In summary, we must assume

the defendant testifies in an exculpatory manner; the prior escape and voluntary

manslaughter convictions are properly admitted for impeachment purposes; and the

murder and aggravated assault convictions are improperly admitted for

impeachment purposes. Based upon these assumptions, the majority concludes

the admissibility of the murder and aggravated assault convictions creates

reversible error. Based upon these same assumptions, I would conclude that once

the voluntary manslaughter and escape convictions were admitted, the result woiuld

be the same regardless of whether the murder and aggravated assault convictions

were also admitted. Thus, any error would be harmless.



       I am not inclined to reverse these convictions based upon speculation as to

what the defendant’s testimony would be. I am certainly not prepared to speculate

that the defendant would admit committing these crimes. Nor am I prepared to

speculate to what extent the defendant’s testimony would be exculpatory. I am,

quite simply, not prepared to speculate.



       For these reasons, I respectfully disagree with the finding of reversible error.



                                           _________________________________
                                           JOE G. RILEY, JUDGE




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