         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 15, 2004

              STATE OF TENNESSEE v. THEODORE F. HOLDEN

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2003-B-904    Cheryl Blackburn, Judge



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


The defendant appeals his burglary conviction and argues that the trial court erred in finding that he
“opened the door” to cross-examination regarding his prior burglary convictions. Upon thorough
review, we conclude that defense counsel’s pattern of questioning did not open the door to cross-
examination on prior burglary convictions initially ruled inadmissible. We hold that the trial court
erred in reversing itself and allowing cross-examination as to the convictions; therefore, we reverse
the judgment of the trial court and remand for a new trial.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                       Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined and
JOHN EVERETT WILLIAMS, J., dissented.

Ross E. Alderman, District Public Defender; Emma Rae Tennent (on appeal) and Patrick Frogge (at
trial), Assistant Public Defenders, for the appellant, Theodore F. Holden.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Victor S.
(Torry) Johnson, III, District Attorney General; and Bret Gunn and Angie Dalton, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                   Facts and Procedural History

        The defendant, Theodore F. Holden, was indicted for one count of burglary of a motor
vehicle and two counts of theft of property. Following the State’s dismissal of the theft charges, a
jury found the defendant guilty of the remaining charge of burglary, and he was sentenced to six
years incarceration as a career offender. On appeal, the defendant’s sole contention is that the trial
court erred when it found that the defendant “opened the door” to cross-examination regarding the
defendant’s prior burglary convictions.
       Prior to trial, the State filed a notice of intent to use prior convictions for impeachment
purposes. The convictions, listed chronologically, included:

        1) Armed Robbery (November 10, 1988)
        2) Attempted Aggravated Robbery (January 9, 1992)
        3) Theft (January 29, 1996)
        4) Theft (March 28, 1996)
        5) Theft (May 30, 1996)
        6) Burglary (July 11, 1996)
        7) Burglary (July 3, 1997)
        8) Possession of Cocaine for Sale (January 14, 2000)
        9) Criminal Impersonation (December 4, 2000)
        10) Theft (December 4, 2000)
        11) Attempted Theft (January 12, 2001)
        12) Theft (March 5, 2001)
        13) Burglary (April 24, 2001)

         In response, the defendant filed a motion in limine, contending that should the defendant
testify the court should prohibit impeachment with his past convictions. Specifically, the defendant
argued that, with the exception of criminal impersonation, none of the convictions were admissible
because they were: (1) stale, and the interests of justice did not require the court to look beyond ten
years; (2) not probative at all as to credibility; or (3) the same charge for which the defendant was
on trial, resulting in heightened prejudice. Alternatively, the defendant requested a limiting
instruction for the jury if the convictions were to be allowed to impeach the defendant.

        In ruling on the motion in limine, the trial court found that the prejudicial effect of the armed
robbery and attempted aggravated robbery convictions outweighed their probative value because they
would bring to the jurors’ minds crimes of violence. The court further disallowed the three burglary
convictions because of their similarity to the crime for which the defendant was charged. The court
also found the conviction for possession of cocaine for sale to be inadmissible to impeach the
defendant. Regarding the remaining charges of theft, attempted theft, and criminal impersonation,
the trial court found that their “probative value far outweighs any prejudicial value because [the
defendant’s] credibility would be at issue” and allowed the convictions for the purpose of
impeachment.

       As part of the defense’s proof at trial, the defendant testified, and the following exchange
took place between the defendant and his counsel on direct examination:
       Q: Now Mr. Holden, you know that by choosing to testify today, your credibility is
           at issue?
       A: I understand.
       Q: And you do have several misdemeanor thefts on your record; is that true?


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        A:   Yes, I do.
        Q:   You have three in 1996?
        A:   I guess, yeah.
        Q:   You have one in 2000?
        A:   I guess, yeah.
        Q:   You have misdemeanor criminal impersonation in 2001?
        A:   Yeah, I do.
        Q:   And you have a theft in 2001, a misdemeanor theft?
        A:   Okay.
        Q:   Now you pled guilty in all of those cases; is that correct?
        A:   Yes, I did.
        Q:   You didn’t plead guilty in this case?
        A:   No, I didn’t.
        Q:   Why not?
        A:   Because I’m not guilty?

Following the exchange, a bench conference was requested by the State and held on the record.
During the conference, the State argued that defense counsel’s line of questioning implied that all
of the defendant’s convictions were misdemeanors, thereby leaving a “misimpression” with the jury.
Further, the State requested that it be allowed to ask about the defendant’s felony convictions which
had been previously excluded by the court under Tennessee Rule of Evidence 609. Defense counsel
countered that he did not state the list was all-inclusive of the defendant’s record or that the
defendant did not have felony convictions.

        After the jury was removed from the courtroom, the State reiterated that defense counsel had
impermissibly broadened the questioning, thereby opening the door to cross-examination on the full
array of convictions. The defense countered that it properly examined the defendant regarding the
charges ruled admissible in the motion in limine, noting that the convictions were called
misdemeanors because that is, in fact, what they were.

        In ruling on the admissibility of the remaining convictions, the court initially noted that while
defense counsel had portrayed the defendant as only having misdemeanor convictions, the
defendant’s record, in fact, contained six felony convictions, all previously excluded under Rule 609.
Further, the court found that the defendant’s credibility “couldn’t be more at issue,” and re-applied
the balancing test of Rule 609 to the remaining convictions. The court concluded that the defendant
could be cross-examined regarding the burglary convictions, which are crimes of dishonesty, but not
as to any other convictions. Following counsel’s request, the court allowed the defense to address
the burglary convictions first, on direct examination, which defense counsel did. On direct
examination, the defendant stated that he pled guilty to the three previous burglary charges, but not
the present charge. The trial court gave the jury a limiting instruction before the defendant was
cross-examined.




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        Following his conviction, the defendant filed a motion for new trial, which was denied by
the trial court. On appeal, the defendant argues that the court erred in ruling that the defendant
opened the door to his burglary convictions, which had previously been found inadmissible under
Rule 609.

                                              Analysis

        Tennessee Rule of Evidence 609 states that the credibility of a witness may be attacked by
evidence of prior convictions if certain prerequisites are met. First, the conviction must be
punishable by death or imprisonment over one year or must involve a crime of dishonesty or false
statement. Tenn. R. Evid. 609(a)(2). Secondly, if the witness to be impeached, is a criminal
defendant, the State must give notice prior to trial of its intent to use the conviction for impeachment.
Tenn. R. Evid. 609(a)(3). Finally, upon request, the court must determine that the probative value
of the prior conviction on the issue of credibility outweighs its prejudicial effect on substantive
issues. Tenn. R. Evid. 609(a)(3).


         Thus, Tenn. R. Evid. 609(a)(3) grants special treatment to criminal defendants when it comes
to impeachment with prior convictions. The reason for this is obvious. There is a concern that if
a jury knows of a defendant’s previous criminal record, the panel might conclude that the defendant
has a propensity to commit crimes and convict on this basis rather than on the evidence of the
charges before them. This concern is greatly heightened when all or some of the prior convictions
are for identical crimes as those for which the defendant is on trial. State v. Walker, 29 S.W.3d 885,
891 (Tenn. Crim. App. 1999). Therefore, Rule 609(a)(3) serves as a screening mechanism whereby
prior convictions are admitted for impeachment when the potential for undue prejudice is
outweighed by the probity of the conviction on the question of the defendant’s credibility.
Conversely, even prior convictions with a great deal of probity on the question of the defendant’s
credibility are often ruled inadmissible as impeachment material because the danger of undue
prejudice is too great. For example, the trial judge in the instant case initially ruled that in this case
where the defendant was on trial for burglary, evidence of his convictions for prior burglaries should
be excluded. In our view, that was a correct decision.

                The State in the instant case relies on State v. Kendricks, 947 S.W.2d 875, 882-83
(Tenn. Crim. App. 1996); for the proposition that the defendant, through his direct testimony
concerning his criminal record, opened the door to a reversal of the trial judge’s original decision
to exclude the prior burglary convictions and thus was properly impeached by the State with the use
of those convictions. However, the instant case is clearly distinguishable from Kendricks. In that
case there does not appear to have been a hearing under Rule 609(a)(3) to determine which of any
of the defendant’s three (3) prior criminal convictions should be admissible as impeachment should
the defendant testify in a first degree murder prosecution. On direct examination Kendricks was
asked “do you have any history of any convictions for any kind of crime?” Kendricks replied,
“returned checks.” Id. In fact Kendricks also had convictions for drunk driving and marijuana



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possession. This Court held that the defendant’s less than complete response opened the door to
being asked about the latter two (2) convictions. Id.

                 In the instant case there was a hearing in which the defendant’s burglary convictions
were ruled inadmissible. He was asked by his attorney on direct examination specifically about each
of the prior misdemeanor theft convictions which were admissible in an effort to diffuse the impact
of the prosecution’s impeachment efforts. The defendant answered truthfully and completely about
the only prior convictions ruled admissible at that point in the trial. This stands in marked contrast
to the situation in Kendricks where the admissibility of none of the defendant’s prior convictions had
been determined and he was asked an opened ended questions such as “do you have any history of
any convictions for any kind of crime?” In this case the defendant was under no obligation to testify
on direct examination about prior convictions held inadmissible.

                Moreover, the defendant’s characterization of the theft offenses as misdemeanors
does not change this result. This was a true statement as the prior theft convictions were indeed
misdemeanors. It should be remembered that Rule 609(a)(3) is designed to protect a defendant from
undue speculation about his prior record, not punish him for characterizing his admissible criminal
record in an accurate fashion. Indeed, had the defense attorney not made it clear that the prior thefts
were misdemeanors, the jury might well have speculated the thefts were serious felonies which they
were not.1 In summary, accurate preemptive direct examination of a criminal defendant with respect
to his or her admissible criminal history is a common and reasonable defense tactic. Truthful
characterization of that admissible criminal record does little to increase the possibility that a jury
will speculate about a defendant’s prior record beyond that inherent in Rule 609(a)(3) which by its
very nature often gives juries an incomplete view of the defendant’s criminal record. Against, this
vague possibility of additional jury speculation is the clearly great potential for undue prejudice
occasioned by the jury’s having heard the defendant has committed crimes in the past virtually
identical to that for which he is on trial. We believe the prior burglary convictions should have
remained inadmissible throughout the trial and that in changing her mind on that question after the
defendant’s direct testimony the trial judge committed reversible error. Therefore, this case is
reversed and remanded for a new trial in accordance with this opinion.




                                                                 ____________________________________
                                                                 JERRY L. SMITH, JUDGE



         1
           Of course, the State is not allowed in impeachment to simply ask a criminal defendant about generic “prior
felonies” or “felonies involving dishonesty” without actually specifying the prior felonies. State v. Galmore, 994 S.W .2d
120, 122 (Tenn. 1999). This is to avoid speculation on the jury’s part that the generic “prior felony” is the same one for
which the defendant is on trial and to allow the jury to properly evaluate the prior crimes held admissible under Rule
609(a)(3) in determining the defendant’s credibility. But it does not prohibit either the defense or the prosecution from
accurately characterizing admissible prior crimes as felonies or misdemeanors once the crime is properly identified.

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