State v. Jerry Wayne Gifford ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1999 SESSION
July 9, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9809-CC-00396
Appellee, )
) FRANKLIN COUNTY
VS. )
) HON. BUDDY D. PERRY,
JERRY WAYNE GIFFORD, ) JUDGE
)
Appellant. ) (Aggravated Burglary and Theft)
FOR THE APPELLANT: FOR THE APPELLEE:
PHILIP A. CONDRA PAUL G. SUMMERS
District Public Defender Attorney General and Reporter
FRANCIS W. PRYOR MARVIN E. CLEMENTS, JR.
Assistant District Public Defender Assistant Attorney General
P.O. Box 220 Cordell Hull Building, 2nd Floor
Jasper, TN 37347-0220 425 Fifth Avenue North
Nashville, TN 37243-0493
JAMES MICHAEL TAYLOR
District Attorney General
WILLIAM B. COPELAND
Assistant District Attorney General
265 Third Avenue, Suite 300
Dayton, TN 37321
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
A Franklin County jury convicted defendant of aggravated burglary, a Class
C felony, and theft of property over $1000, a Class D felony. The sole issue in this
appeal as of right is the propriety of the trial court’s ruling that defendant’s prior
felony marijuana conviction was admissible for purposes of impeachment. Based
upon our review of the record, we AFFIRM the judgment of the trial court.
FACTS
Defendant was indicted and convicted for aggravated burglary and theft of
a 4-wheel all-terrain-vehicle (ATV) valued at over $1000. The state’s proof at trial
included identification testimony from two eyewitnesses who identified defendant
as the person riding the stolen ATV the day of the burglary, and testimony from
defendant’s ex-mother-in-law that defendant promised to return the ATV if she and
her husband would drop the charges against him.
The state served notice on defendant of intent to use his prior felony
marijuana conviction for purposes of impeachment at trial. At the close of the
state’s proof and outside the presence of the jury, defense counsel objected to
admission of the prior conviction. The trial court overruled the motion finding that
the conviction met the prerequisites of Tenn. R. Evid. 609(a) for admissibility.
During defendant’s direct examination, defense counsel elicited defendant’s
acknowledgment of the prior conviction. The state did not address the conviction
during cross-examination.
WAIVER
2
Defendant claims on appeal that the trial court committed plain error in ruling
the prior conviction admissible for impeachment purposes. The state argues that
the issue is waived on two alternative grounds: (1) defendant’s peremptory
admission of the prior conviction on direct examination, and (2) failure to present the
issue in his motion for new trial.
This Court addressed the issue of waiver in the context of peremptory
testimony by the defendant in State v. Roberts, 943 S.W.2d 403 (Tenn. Crim. App.
1996): "we do not agree with the State that the defendant waived this issue when
he testified about these prior convictions on direct examination.” Id. at 409 (relying
on State v. McGhee, 746 S.W.2d 460, 463 (Tenn. 1988)). Thus, defendant did not
waive the issue by peremptorily addressing the felony conviction in his direct
testimony.
Regardless, the written motion for new trial filed by defense counsel does not
set out this issue as a basis for relief. As such, defendant waived the issue for
failing to present it in his motion for new trial as required by Tenn. R. App. P. 3(e).
Nevertheless, this Court does have the authority to address this issue if we find
“plain error.” See Tenn. R. Crim. P. 52(b); State v. Stephenson, 878 S.W.2d 530,
553-54 (Tenn. 1994).
In this case we find no plain error although the trial court did not conduct the
probative value/unfair prejudice analysis as required by Tenn. R. Evid. 609(a)(3).
See State v. Binion, 947 S.W.2d 867, 874 (Tenn. Crim. App. 1996); State v. Tune,
872 S.W.2d 922, 927 (Tenn. Crim. App. 1993)(both cases allowing the admission
of felony drug convictions for impeachment).
3
Furthermore, even if the trial court erred in allowing this conviction into
evidence, the error at most was harmless in light of the evidence against the
defendant.
This issue is without merit.
CONCLUSION
Based upon the forgoing, we AFFIRM the judgment of the trial court.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOSEPH M. TIPTON, JUDGE
____________________________
ALAN E. GLENN, JUDGE
4