Hatchett v. State

552 S.W.2d 414, 1977 Tenn. Crim. App. LEXIS 241

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 12, 1977
• Status: Published

Opinions

OPINION

TATUM, Judge.

The appellant was convicted for possessing a controlled substance (lycergic acid diethylamide — LSD) and his punishment was fixed at 11 months and 29 days in the county jail or workhouse. This conviction must be reversed.

The assignment of error which must be sustained is that the Court erred in allowing the State to question the appellant concerning a prior misdemeanor conviction. Over his objection, the appellant was asked several times, on cross-examination, “Have you ever used illegal drugs”. He replied that he had not. On further cross-examination, he was asked whether he was convicted for possessing marijuana in the General Sessions Court of Shelby County on January 14, 1972. He was required to answer over his objection. His answer was in the affirmative.

The State contends that the question concerning the conviction contradicted his prior testimony on cross-examination to the effect that he had never used drugs and was, therefore, proper for impeachment purposes. We disagree. The questions concerning the appellant’s prior use of drugs were improper for any purpose. The simple possession of a controlled substance is a misdemeanor. T.C.A. § 52-1432(b)(l). The specific act of simple possession or use of drugs is not such that can be lawfully asked a defendant on cross-examination for impeachment purposes. See, State v. Morgan, 541 S.W.2d 385 (Tenn.1976); Collard v. State, 526 S.W.2d 112 (Tenn.1974); Fee v. State, 497 S.W.2d 748 (Tenn.Cr.App.1973). Since the question concerning prior possession of drugs was not proper, because it was irrelevant and prejudicial, the question concerning the conviction for possession of marijuana would not be allowed for impeachment purposes. The State cannot ask a witness an irrelevant but prejudicial question, and then, under the theory of impeachment, predicate a second irrelevant and prejudicial question upon the defendant’s response to the first question.

The simple possession of marijuana is a misdemeanor. T.C.A. § 52-1432(b)(l). This is not a crime involving moral turpitude, or a crime of such character that the conviction itself would discredit the testimony of the defendant. There is no connection between the use or possession of marijuana and the veracity of a witness. Collard v. State, supra; see, State v. Morgan, supra; Fee v. State, supra.

We think that the admission of this evidence was prejudicial, particularly since it communicated to the jury that the appellant had been previously convicted for a similar offense for which he was being tried.

The remaining assignment of error complains that the Trial Judge charged the jury as to the law regarding parole. Our disposition of this case makes this assignment moot.

The judgment of the Criminal Court of Shelby County is reversed and the case is remanded for a new trial.

WALKER, P. J., concurs.