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IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FILED
FOR PUBLICATION May 10, 1999 Filed: May 10, 1999 Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, APPELLEE, v. ABRAHAM GALMORE, APPELLANT. ) ) ) ) ) ) ) ) )

SHELBY COUNTY Hon. Joseph B. Dailey, Judge No. 02S01-9804-CR-00033

FOR APPELLANT: A. C. WHARTON PUBLIC DEFENDER MEMPHIS M. MARK WARD ASSISTANT PUBLIC DEFENDER MEMPHIS

FOR APPELLEE: JOHN KNOX WALKUP ATTORNEY GENERAL & REPORTER MICHAEL E. MOORE SOLICITOR GENERAL MICHAEL J. FAHEY II ASSISTANT ATTORNEY GENERAL NASHVILLE

OPINION

AFFIRMED

HOLDER, J.

OPINION

We granted this appeal to determine: 1) whether the State may impeach a defendant's credibility by referring to an unnamed felony conviction; and 2) if not, whether a non-testifying defendant must show that he did not testify because of the trial court's ruling. We hold that the trial court erred in permitting the State to impeach the defendant's credibility by referring to an unnamed felony conviction. We further hold that the defendant was not required to preserve his objection by stating that he would have testified in his trial but for the trial court's ruling or by making an offer of proof as to his proposed trial testimony. Although the ruling as to the admissibility of the prior felony was improper, it does not mandate reversal in this case.

BACKGROUND

On December 14, 1993, James Hathaway and the defendant, Abraham Galmore, robbed Dan and Maxine Swartz, the resident managers of a selfstorage facility in Memphis. Both victims were shot in the head, stabbed, and cut across the throat. Mr. Swartz died as a result of his injuries. Mrs. Swartz survived and was able to identify Hathaway, whom she knew prior to the incident, as one of the perpetrators. Galmore admitted his involvement in the robbery but denied having harmed either victim.

Prior to trial, the State gave written notice pursuant to Tenn. R. Evid. 609(a)(3) of its intent to impeach the defendant's credibility with six prior burglary convictions and one prior robbery conviction. After a hearing, the trial court concluded that the six burglary convictions could be used for impeachment purposes. As to the robbery conviction, the trial court stated that it was inclined 2

to allow the State to use that conviction by asking the defendant, "Isn't it true that you are the same Abraham Galmore that was convicted of a felony on September 1, 1992, in indictment 92-02608, and received a sentence of X years. . . ?"1 The defendant did not testify at trial. The jury convicted the defendant of especially aggravated robbery and criminally negligent homicide. The trial court imposed an effective sentence of sixty-six years.

Relying on State v. Summerall, 926 S.W.2d 272 (Tenn. Crim. App. 1995), the Court of Criminal Appeals held that admission of a prior conviction of "a felony" without further identification would have been improper. The court, however, concluded that the trial court's ruling was not reversible error because the defendant failed to demonstrate prejudice. The court noted that the defendant neither showed that he would have testified had the unnamed felony conviction been excluded nor made an offer of proof as to his proposed trial testimony. The court further held that any error was harmless based on the overwhelming evidence of guilt and the admissibility of the six burglary convictions for impeachment purposes.

ANALYSIS

The State concedes that the trial court erred in ruling that the defendant's credibility could be impeached by asking whether he had been convicted of an unnamed felony. The State, however, argues that the defendant waived his right to consideration of the issue on appeal because he: (1) failed to show that he did not testify because of the ruling; and (2) failed to make an offer of proof as to

Although the record does not include a final ruling on this issue, the defendant stated during a jury-out hearing that he understood the trial court's ruling that the State could not ask about the robbery conviction per se but could ask whether he had a felony conviction. The defendant then indicated that he did not wish to testify. The record is silent as to whether the defend ant intend ed to testify if the ro bbery co nviction we re exclu ded.

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his proposed testimony. The defendant contends that the requirements proposed by the State conflict with Tenn. R. Evid. 609(a)(3), are against public policy, and have practical problems in implementation.

I.

Before the accused in a criminal prosecution may be impeached by proof of a prior conviction, the trial court "must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues." Tenn. R. Evid. 609(a)(3). In making this determination, the trial court should (1) "analyze the relevance the impeaching evidence has to the issue of credibility" and (2) "`assess the similarity between the crime on trial and the crime underlying the impeaching conviction.'" State v. Mixon, 983 S.W.2d 661, 674(Tenn. 1999) (quoting N. Cohen, D. Paine, and S. Sheppeard, Tennessee Law of Evidence,

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