              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON

                              SEPTEMBER 1999 SESSION
                                                                  FILED
                                                                   March 14, 2000
                                                                Cecil Crowson, Jr.
STATE OF TENNESSEE,                           )               Appellate Court Clerk
                                             ) C.C.A. NO. W1998-00634-CCA-R3-DD
         Appellee,                            )
                                              )     SHELBY COUNTY
VS.                                          )
                                             )     HON. JOSEPH B. DAILEY, JUDGE
VINCENT C. SIMS,                             )
                                             )
         Appellant.                          )     (Especially Aggravated Burglary and
                                             )       First Degree Murder -
                                             )       Death Penalty)



                                CONCURRING OPINION


         I concur in most respects with the excellent analysis in the majority opinion.
However, I disagree with the analysis of the state’s introduction and use of prior non-

violent convictions during the sentencing phase. I believe the introduction of these

prior non-violent convictions was error, although I further conclude it was harmless

error.



         I do not interpret Tenn. Code Ann. § 39-13-204(c) as broadly as the majority.

I disagree with the assertion that “whether the admission of the prior conviction was

proper under Rule 405 would simply not be relevant.” I am not prepared to state that
the Tennessee Rules of Evidence are irrelevant in a death penalty sentencing hearing.



         I also disagree with the majority opinion’s conclusion that the father’s testimony
opened the door for the introduction of evidence relating to the prior non-violent

convictions for misdemeanor theft and aggravated burglary. The father’s testimony

was simply that “Vincent was a good child. Good one.” When asked what he meant
by “good,” the father stated “[h]e wouldn’t disrespect me or his mother.” The father

then immediately continued by referring to the defendant’s childhood. This did not

open the door to the introduction of prior convictions for these non-violent offenses.




See generally Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979). At the very

least, the probative value of these prior non-violent convictions was substantially

outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403.

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       The state’s use of the prior misdemeanor theft and aggravated burglary was

further compounded by its erroneous use of these same prior convictions when cross-

examining the defendant’s remaining three witnesses. These witnesses were the
defendant’s two aunts and brother. Their direct testimony was limited, describing

defendant’s close-knit and supportive family and his behavior while incarcerated. The

state, in an apparent attempt to impeach each of these witnesses, erroneously asked
each witness about the defendant’s prior misdemeanor theft and aggravated burglary

convictions. During the cross-examination of one witness, the state on at least four

separate occasions asked if the witness believed the defendant to be a “dangerous”
person. The witness was also asked if she had “heard he’s been convicted of

shooting two people before.” The contention that these questions were properly

allowed to rebut two mitigating factors (supportive family, model prisoner while
incarcerated) is, in my view, without merit.



       Of grave significance was the absence of a jury instruction on the proper use
of this alleged impeachment evidence. The trial court was required to instruct the jury

to consider this evidence not for its truth, but rather to evaluate the credibility of the

witnesses. See State v. Nesbit, 978 S.W.2d 872, 883 (Tenn. 1998). The absence of

limiting instructions allowed the jury to consider this evidence in a substantive manner.



       The final argument of the state further compounded the problem since the state

repeatedly referred to the misdemeanor theft and aggravated burglary convictions.

A recurring theme in the state’s final argument was defendant’s “continuing series of
escalation, crimes getting worse, and worse, and worse...           He’s stealing, he’s

burglarizing, and he is shooting [the victim] in the sanctity of his home.” This theme

of escalating crime, which incorporated the theft and aggravated burglary convictions,
was emphasized approximately ten times in the state’s final argument. Relying upon

the prior convictions, the state on three occasions referred to the sentencing hearing

as “graduation day.”



       Whether these errors were harmless presents a very close issue. However, in

spite of the state’s improper introduction and use of the prior non-violent convictions,

I reluctantly conclude the error was harmless. The jury found four aggravating
circumstances. There were two prior violent felony convictions that could properly be

considered as prior felonies involving the use of violence. The strength of the


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aggravating circumstances is such that I conclude the jury would have reached the

same result without the erroneous admission and use of this evidence.



             I concur in the result.



                                       ___________________________________
                                       JOE G. RILEY, JUDGE




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