         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                       May 2000 Session

               STATE OF TENNESSEE v. JESSE ROSS TOLBERT

                  Direct Appeal from the Criminal Court for Roane County
                           No. 11768     E. Eugene Eblen, Judge



                                 No. E1999-02326-CCA-R3-CD
                                       August 18, 2000


        Defendant appeals as of right from his conviction of aggravated assault. At trial the trial
judge did not let defense counsel question the sole prosecution witness about the witness’ guilty plea
to extortion and subsequent judicial diversion. The court did allow questioning regarding the facts
underlying the witness’ prosecution. Defendant now alleges that this evidentiary ruling violated his
rights under the confrontation clauses of the United States and Tennessee Constitutions. We hold
that the trial court erred. Under Tennessee Rule of Evidence 608 defense counsel should have been
allowed to question the witness regarding the guilty plea and judicial diversion. However, we
conclude that the error is harmless beyond a reasonable doubt. We thus affirm the judgment of the
trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Joe H. Walker, District Public Defender; Alfred Hathcock, Assistant Public Defender; and Roland
Cowden, Assistant Public Defender, Harriman, Tennessee, for the appellant, Jesse Ross Tolbert.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General;
for the appellee, State of Tennessee.

                                             OPINION

        Defendant Jesse Ross Tolbert was convicted of aggravated assault by a Roane County jury
and sentenced to three years incarceration in the Department of Correction. In this appeal Defendant
raises one issue regarding his constitutional confrontation rights. During cross-examination of the
victim the trial court did not allow defense counsel to discuss the victim's guilty plea to extortion
because the victim was granted judicial diversion. The trial court did allow defense counsel to
explore the factual circumstances that gave rise to the victim’s prosecution. Defendant now argues
that this ruling by the trial court violated Defendant's confrontation rights, and asks that we reverse
his conviction. After a careful review of the record and applicable law we conclude that the trial
court erred. However, we conclude that the error is harmless beyond a reasonable doubt, and thus
affirm the judgment of the trial court.

                                               I. Facts

        On August 9, 1996 Defendant Tolbert went to the home of his ex-wife, Candace Eskridge,
to get his son for a parental visit. One block from the house he encountered his ex-wife’s husband,
Marshall Eskridge, and Defendant’s son, who were out riding bicycles. At trial Eskridge testified
that Defendant pulled up in a van with two other persons, exited the van, and informed Eskridge that
Defendant was there to get his son. Eskridge asked Defendant to come to the house, so Eskridge
could confirm that Defendant had Candace’s permission to take the boy. Defendant then yelled
obscenities at Eskridge and threatened him. Eskridge said that he could smell alcohol on
Defendant’s breath, and that Defendant’s eyes were bloodshot. Eskridge placed his body between
Defendant and Defendant’s son, and Defendant again threatened Eskridge.

         Eskridge placed the boy on one of the bicycles, climbed on the same bike, and rode back to
the house. Defendant followed in the van. At the house Eskridge took the boy inside, and when
doing so he observed Defendant yelling and exiting the van with a shotgun. While Defendant stood
at the front of the house and screamed for Candace Eskridge to come outside, Eskridge proceeded
to retrieve a nine millimeter automatic pistol from inside the house. After he collected the weapon
he went back outside the house because Candace Eskridge had responded to Defendant’s yelling and
had gone out to talk to Defendant. By the time that Eskridge exited the house Defendant was back
in the van, sitting on the passenger side. Defendant pointed the shotgun at Eskridge, and Eskridge
pointed the pistol at Defendant. No words were exchanged, and after a moment the van drove off
with Defendant in it.

        At trial the State’s only proof was the testimony of Marshall Eskridge, and Defendant
presented no proof. Defendant sought to undermine Eskridge’s credibility by delving into the
circumstances regarding Eskridge’s resignation from the Knoxville Police Department in March of
1996. Eskridge was caught in an FBI sting operation when he arrested a man for whom no warrant
was outstanding, and offered to “fix” the warrant for a cash sum. Eskridge pled guilty to one count
of extortion, and received judicial diversion. Eskridge testified that as a result he resigned from the
Knoxville Police Department; the presentence report prepared for his guilty plea hearing states that
he was fired.

       The trial court ruled pre-trial that defense counsel could explore the factual circumstances
underlying Eskridge’s guilty plea, but that defense counsel could not discuss any aspect of the legal
proceedings against Eskridge, including the guilty plea and judicial diversion. The trial court did
not give any reasons for this ruling in the record. Defense counsel managed a furious attack on the
victim’s credibility with questions regarding the circumstances of the victim’s crime.


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                                             II. Analysis

         Defendant asserts that the trial court erred when it did not allow an inquiry, on cross
examination, regarding the victim’s guilty plea and judicial diversion status, and that in so doing the
trial court violated Defendant’s right to effectively cross examine his accuser. Defendant argues that
defense counsel should have been allowed to question the victim regarding the plea and judicial
diversion. Defendant also argues that defense counsel should have been permitted to admit the guilty
plea into evidence if Defendant denied the existence of the plea. We agree that the trial court erred
when it did not allow questioning of the victim about the plea and diversion. Tennessee Rule of
Evidence 608 controls this issue, and the trial court erred when it did not follow the procedure set
forth in the rule. We do not think that judicial diversion is a “conviction” within the meaning of
Rule 609, however, and thus any extrinsic evidence of Defendant’s plea and diversion would not
have been admissible had Defendant denied the existence of the plea. Accordingly, when the trial
court’s error is placed in the context of the entire trial, the error is harmless beyond a reasonable
doubt, and therefore Defendant is not entitled to relief.

         The Sixth Amendment to the United States Constitution provides that a criminal defendant
“shall enjoy the right . . . . to be confronted with the witnesses against him.” U.S. Const. amend. IV.
Likewise, Tennessee’s constitution states that “the accused hath the right . . . . to meet the witnesses
face to face.” Tenn. Const. art. I., § 9. These so called “confrontation” clauses have been interpreted
to give a defendant the right to physically face and effectively cross-examine the government’s
witnesses. State v. Howard Brown, No. E1995-00017-SC-R11-CD, 2000 WL 49153, at * 3, Knox
County (Tenn. 2000) pet. for cert. filed, 68 U.S.L.W. 3998; State v. Belser, 945 S.W.2d 776, 784
(Tenn. Crim. App. 1996) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).

        The right to an effective cross-examination is not unbridled. This right is part of a
defendant’s right to present a defense, and generally an accused “does not have an unfettered right
to offer evidence that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The right to present relevant evidence may
bow to accommodate other legitimate interests in the criminal trial process. Michigan v. Lucas, 500
U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987). Defendant’s brief
implicitly acknowledges these limitations; Defendant argues that the trial court erred only because
the evidence regarding the victim’s guilty plea and judicial diversion is competent evidence under
the Tennessee Rules of Evidence.

        We agree with Defendant’s assertion that an inquiry regarding the victim’s guilty plea and
judicial diversion should have been allowed on cross examination. Defendant argues that this result
is mandated by Tennessee Rule of Evidence 609, but we think that the issue is controlled by Rule
608. Rule 609 governs impeachment of a witness when a witness has been convicted of crime
punishable by death or one year or more in prison, or a crime involving dishonesty or false statement.
See Tenn. R. Evid. 609(2). The rule sets forth guidelines that provide when the witness may be
asked about the conviction (on cross-examination), and how extrinsic evidence may be admitted to



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prove that the witness has been so convicted if the witness denies the conviction under oath. Id.
609(1).

         Here, however, the victim was not convicted of any crime. The victim did plead guilty to
extortion, but was granted judicial diversion. When judicial diversion is granted a judgment of
conviction is not entered in the record, and all proceedings against the defendant are stayed. See
Tenn. Code Ann. § 40-35-313(a)(1)(A) (1999). If diversion is completed successfully all official
records regarding the prosecution are expunged from the Defendant’s criminal record. Id. § 313(b).
The effect is “to restore the person, in the contemplation of the law, to the status the person occupied
before such arrest or indictment or information.” Id. “Such discharge or dismissal shall not be
deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction
of a crime or for any other purpose, except as provided in subsection (b).” Id. § 313(a)(2). Although
subsection (b) does discuss the admissibility of judicial diversion records, it limits admissibility to
(1) non-public records kept by the trial court, that are (2) presented in civil trials where the defendant
is a civil plaintiff, and (3) the subject matter of the suit is the same matter as the original criminal
prosecution. Id. §313(b). Notably, the statute omits any reference to the general admission of
judicial diversion records for impeachment purposes under Rule 609.

         Given the language of the statute we think that when a defendant is granted judicial diversion
there is no conviction within the meaning of Rule 609, and thus the rule does not apply when counsel
seeks to impeach a witness with a criminal prosecution that has concluded in judicial diversion. See,
e.g., State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999) (holding in part that successful
completion of judicial diversion does not bar evidence of the underlying criminal act as a prior bad
act); State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (suggesting that there is no
conviction within the meaning of Rule 609 when pretrial diversion is granted). Here, this means that
any extrinsic evidence of the victim’s guilty plea and judicial diversion is inadmissible.

      We think that the evidence of the victim’s guilty plea and judicial diversion is governed by
Tennessee Rule of Evidence 608(b), which states in part:

                (b) Specific Instances of Conduct. – Specific instances of conduct of a
        witness for the purpose of attacking or supporting the witness’s credibility, other than
        convictions of crime as provided in Rule 609, may not be proved by extrinsic
        evidence. They may, however, if probative of truthfulness or untruthfulness and
        under the following conditions, be inquired into on cross-examination of the witness
        concerning the witness’s character for truthfulness or untruthfulness or concerning
        the character for truthfulness or untruthfulness of another witness as to which the
        character witness being cross-examined has testified. The conditions which must be
        satisfied before allowing inquiry on cross-examination about such conduct probative
        solely of truthfulness or untruthfulness are:




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               (1) The court upon request must hold a hearing outside the jury’s presence
       and must determine that the alleged conduct has probative value and that a reasonable
       factual basis exists for the inquiry;

Under this rule a witness who has been granted judicial diversion may be properly questioned, for
impeachment purposes, about the criminal conduct that lead to prosecution, as well as the subsequent
prosecution and judicial diversion. See Schindler, 986 S.W.2d at 211. See also Dishman, 915
S.W.2d at 463 (questioning of victim regarding burglary prosecution proper under Rule 608 even
though pre-trial diversion was granted and completed); State v. Williams, 645 S.W.2d 258 (Tenn.
Crim. App. 1982) (under Rule 608 trial court should have allowed questioning of witness regarding
larceny prosecution, even though pre-trial diversion was granted).

         Here, defense counsel requested a pre-trial hearing to show that the victim had indeed pled
guilty to extortion and received judicial diversion. The trial court replied “No. No. No. No.” The
trial court instructed defense counsel that on cross-examination counsel could not discuss any aspect
of the victim’s guilty plea and judicial diversion, but that counsel could inquire about the factual
circumstances underlying the victim’s prosecution. We are of the opinion that the trial court erred
when it did not allow Defendant to cross-examine the victim regarding the victim’s guilty plea and
judicial diversion. The language of Rule 608 is non-discretionary; a court “upon request must hold
a hearing.” Tenn. R. Evid. 608 (emphasis added). Because the trial court did not follow the proper
procedure the trial court erred when it instructed defense counsel not to discuss the guilty plea and
judicial diversion during cross-examination.

         Ordinarily, the next step in our analysis would be to assess whether this evidentiary error is
so egregious that it rises to the level of a constitutional violation. However, even when a defendant’s
right to effectively cross-examine a witness is violated this Court may not set aside a conviction if
the constitutional error at trial is harmless beyond a reasonable doubt. State v. Howell, 868 S.W.2d
238, 252-53 (Tenn. 1993); Belser, 945 S.W.2d at 784. Assuming, arguendo, that Defendant’s
confrontation rights were violated by the trial court’s error, we nonetheless affirm the judgment of
the trial court because we conclude that the error is harmless beyond a reasonable doubt.

        In order to assess the effect of an improper denial of a defendant’s cross-examination right
we must ask if the error is harmless beyond a reasonable doubt even if the damaging potential of the
cross-examination were to be fully realized. Howell, 868 S.W.2d at 253 (citing Delaware v. Van
Arsdall, 475 U.S. 673, 684-85 (1986)). Factors to be considered in making this decision include “the
importance of the witness’ testimony to the prosecution’s case, the cumulative nature of the
testimony, the presence or absence of evidence corroborating or contradicting the witness on material
points, the extent of cross-examination otherwise permitted, and the overall strength of the
prosecution’s case.” Id. (citing Van Arsdall, 475 U.S. at 684-85)).

        Here, the victim’s testimony was central to the prosecution’s case because it was the only
evidence of Defendant’s crime. There were no other witnesses at trial. Nonetheless we conclude
that the trial court’s error is harmless beyond a reasonable doubt because the cross-examination that


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was allowed regarding the victim’s crimes was extensive. Any additional damage that would have
been caused by questioning the victim about the guilty plea and judicial diversion would have been
negligible. The relevant portion of the record reads as follows:

       Defense:     And when you took his $240, you made a deal with him, didn’t you?

       Victim:      I don’t understand you by deal.

       Defense:     Well, you said, there’s a warrant out for you, didn’t you?

       Victim:      Yes.

       Defense:     And you said, I can take care of that warrant for you; didn’t you?

       Victim:      Yes. Yes.

       Defense:     But for me to take care of that warrant for you, it’s going to take $240.
                    That’s what you told him, isn’t it?

       Victim:      Yes.

       Defense:     And you took his money, didn’t you?

       Victim:      Yes, I did, yes.

       Defense:     You took the $240?

       Victim:      Yes.

       Defense:     Now you didn’t give back that money before the FBI confronted you,
                    did you?

       Victim:      No, I did not.

       Defense:     But you and the FBI had a little meeting; didn’t you?

       Victim:      Yes.

       Defense:     And in fact, the word extortion was used, wasn’t it?

       Victim:      Yes.

       Defense:     More than once, wasn’t it?


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Victim:    Yes.

Defense:   Now as a police officer you were completely familiar with the crime of
           extortion, weren’t you?

Victim:    Yes, I was.

Defense:   And you admitted to the FBI that you had taken his money?

Victim:    Yes, I did.

Defense:   And you admitted that you took it, because you told him that you’d take
           care of the warrant for him?

Victim:    Yes, I did.

Defense:   And it was after that that (sic) you lost your job with the Knoxville
           Police Department, isn’t it?

Victim:    Not that I–yes, I resigned.

Defense:   You resigned? Well they knew about it; didn’t they?

Victim:    Excuse me?

Defense:   The Knoxville Police Department knew that you’d been stung by the
           FBI?

Victim:    Yes.

Defense:   And it was after they learned about this sting that your career with the
           Knoxville Police Department terminated, wasn’t it?

Victim:    Not on their terms.

Defense:   That’s not what I asked. I’m talking about timing in here. I’m talking
           about timing. My question to you is, it was after they learned that the
           FBI got you, that your career ended with the Knoxville Police
           Department; isn’t that correct?

Victim:    I was in the process of leaving, yes.




                                         -7-
        Defense:      You going to tell this jury you had any choice in keeping that job after
                      the FBI had stung you?

        Victim:       It was a slim possibility.


        In short, the jury was made aware that the victim committed a crime for financial gain, that
he abused his position of trust as a police officer by committing the crime while on-duty, that he
admitted his crime to the FBI, and that the crime was responsible for his immediate departure from
the Knoxville Police Department. During his testimony the victim admitted his guilt to extortion.
The only point of contention was whether he was fired or voluntarily quit his job as a Knoxville
police officer. We think that any additional questions regarding the victim’s guilty plea and judicial
diversion would have caused little additional prejudice to the victim’s credibility. As a result, we
conclude that the trial court’s failure to allow questioning about the guilty plea and judicial diversion
is harmless beyond a reasonable doubt.

                                           III. Conclusion

        For the above reasons we AFFIRM the judgment of the trial court.



                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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