         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

              STATE OF TENNESSEE v. THEODORE F. HOLDEN

                              Criminal Court for Davidson County
                                        No. 2003-B-904



                     No. M2004-00570-CCA-R3-CD - Filed April 19, 2005


JOHN EVERETT WILLIAMS, J., dissenting.

        I respectfully disagree with the majority’s conclusion that the defendant did not open the door
to cross-examination concerning other felonies involving dishonesty. This defendant’s record is
extensive, and all but one of his thirteen convictions involve acts of dishonesty. The defendant’s
credibility was an issue when he chose to testify. For me, it is a close question of whether the
questions asked by the defendant’s attorney opened the door for further examination. By this I mean
it appears that defense counsel was clearly trying to convey the defendant’s record consisted only
of misdemeanor offenses. I trust the trial court heard the inflections in defense counsel’s voice that
he used to emphasize “misdemeanor” in his questioning. Although his questions contained true
statements, the inflections used in asking the questions by defense counsel could surely place an
undue emphasis on “misdemeanor,” creating a misimpression on a jury. I believe the cavalier
answers given by the defendant further opened the door when he answered, “I guess, yeah,” and
“O.K.” The defendant had an extensive criminal record. His first arrest was at age nineteen, and he
is now thirty-two. The record reveals that the defendant had never accumulated more than three
years of good conduct without being arrested. His answers to the specific questions by defense
counsel were answered in such a way that a jury could mistakenly believe that his brushes with the
law were so infrequent or minor that he had difficulty remembering them. I believe this line of
questions was designed to convey a false impression to the jury. Tennessee Rule of Evidence 609
envisions impeachment by the State of a criminal defendant if he or she chooses to testify. Here,
defense counsel sought to lessen the sting of the state’s impeachment or to steal the state’s thunder,
a permissible tactic. However, this permissible trial tactic must be employed with the utmost
caution or the door will be opened for the State to cross-examine on his entire record. Under the
facts of this case, I conclude the trial court was correct in ruling that the defendant opened the door
to further impeachment. Respectfully submitted,




                                                               ______________________________
                                                               JOHN EVERETT WILLIAMS, JUDGE
