IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED August 3, 1999 STATE OF TENNESSEE, * C.C.A. # 02C01-9806-CR-00168 Cecil Crowson, Jr. Appellee, * SHELBY COUNTY Appellate Court Clerk
VS. * Hon. James C. Beasley, Jr., Judge
ALLISON TORRENCE, * (Theft Over $1,000.00 and
Appellant. * Burglary of a Motor Vehicle)
For Appellant: For Appellee:
Tony N. Brayton John Knox Walkup Assistant Public Defender Attorney General and Reporter 201 Poplar Avenue, Suite 2-01 Memphis, TN 38103 Douglas D. Himes Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
David Henry Assistant District Attorney General 201 Poplar Avenue, Third Floor Memphis, TN 38103
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Allison Torrence, was convicted of theft over $1000.00
and burglary of a motor vehicle. The trial court imposed Range III, consecutive
sentences of twelve years for the theft and six years for the burglary conviction. In
this appeal of right, two issues are presented for review:
(I) whether the trial court erred by allowing the defendant's previous convictions to be used for impeachment purposes; and
(II) whether the trial court erred by imposing consecutive sentences.
We affirm the judgment of the trial court.
During the early morning hours of September 2, 1997, Memphis
patrolman Bill Greenwood saw the defendant pulling a wheeled garbage can along
the street. Because the activity was "pretty unusual" at between 4:00 and 5:00
A.M., Officer Greenwood stopped the defendant and asked to look inside the
garbage can. After receiving the defendant's consent, Officer Greenwood
discovered a television, VCR and stereo equipment concealed under a small plastic
bag and a few aluminum cans. When the officer conducted a weapons search of
the defendant, he found a new Mitsubishi cellular telephone.
Initially, the defendant told Officer Greenwood and other officers who
had arrived on the scene that he had obtained the equipment from a pawn shop.
He explained that the cellular telephone belonged to a friend. The defendant
produced a pawn ticket which was illegible. He could not identify the owner of the
telephone and was unable to read the number. When Officer Greenwood dialed the
memory number one on the cellular phone, he awakened Gregory Koziel who said
2 that his wife owned a Mitsubishi cellular telephone that had been left in their van.
The officer waited while the Koziels checked the van. After returning to the phone,
they reported that the vehicle had been burglarized and badly damaged when the
television, VCR, and stereo had been ripped out.
When the officers transported the defendant to the Koziel residence,
Mr. Koziel identified the stolen items and confirmed that the defendant did not have
permission to remove those items from the van. At trial, he testified that the value of
the stolen property was approximately $1,500.00.
I
The defendant first asserts that the trial court erred by allowing the
state to introduce his prior convictions for purposes of impeachment. See Tenn. R.
Evid. 609. We find no reversible error.
Before trial, the district attorney filed a notice to utilize the convictions
for impeachment purposes under Rule 609(a)(3) of the Tennessee Rules of
Evidence. The notice included seven prior offenses:
(1) receiving and concealing stolen property (November 18, 1985);
(2) receiving and concealing stolen property (November 18, 1985);
(3) unlawful possession of a controlled substance with intent to sell/deliver1 (July 3, 1991);
(4) burglary (September 5, 1991);
(5) theft of property (November 17, 1992);
(6) theft of property (July 1, 1994); and
1 At the pretrial hearing, the defendant challenged the admissibility of the drug conviction; how ever , it has not b een challe nge d on a ppe al.
3 (7) burglary of a motor vehicle (December 16, 1994).
In response, the defendant requested a pretrial hearing in an effort to suppress the
prior convictions. See State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). The
defendant argued that the two 1985 convictions were inadmissible under Tenn. R.
Evid. 609(b) because they were more than ten years old. He also contended that
the burglary and theft convictions were inadmissible because they were too similar
to the offenses charged. The trial court ruled that all of the convictions could be
used by the state for impeachment purposes:
[B]ased on the nature of the crimes charged, it appears ... all of them are crimes involving dishonesty. ... I don't find that the 1985 convictions are so far removed outside ... of the rules, ...that they should be excluded ... because of the fact that they do deal with property crimes, crimes involving dishonesty. And there seems to be definitely a pattern of those types of offenses. ... And I think in weighing whether or not to allow that in versus the prejudicial effect, I believe that the State would be prejudiced by not being allowed to prove [the] specific nature of crimes involving dishonesty[,] that it would be appropriate to allow all of these convictions in with the appropriate charge to the jury, that they are not to consider them for anything other than to determine the credibility of Mr. Torrence should he decide to testify.
The defendant elected not to testify but made an offer of proof in
which he asserted he would have testified that he had found the stolen property in
the garbage can. He contended that he was collecting aluminum cans when he
discovered the items and had no idea they had been stolen. He stated that he
explained these circumstances to Officer Greenwood and denied having claimed he
purchased the items at a pawn shop. The defendant also denied any involvement in
the burglary of Koziels' van.
Rule 609 of the Tennessee Rules of Evidence specifically provides as
follows:
4 (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:
***
(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.
(b) Time limit.--Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
See also State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992).
In determining whether the probative value of a prior conviction on the
issue of credibility is outweighed by its prejudicial effect on the substantive issues, a
trial court should "(a) 'assess the similarity between the crime on trial and the crime
underlying the impeaching conviction,' and (b) 'analyze the relevance the
5 impeaching conviction has to the issue of credibility.'" Farmer, 841 S.W.2d at 839
(quoting N. Cohen, D. Paine, and S. Sheppeard, Tennessee Law of Evidence §
609.9, at 288 (2d ed. 1990)). In State v. Abraham Galmore, _____ S.W.2d _____,
No. 02S01-9804-CR-000333, slip op. at 10 (Tenn., at Jackson, May 10, 1999), the
supreme court ruled that an offer of proof is not necessary to preserve the issue for
appeal.
The defendant contends that the 1985 receiving and concealing
convictions are too stale to be relevant. Because the trial court determined that the
offenses, both of which involved dishonesty, established a pattern of criminal
conduct, it allowed each to be used by the state for impeachment purposes.
The probative value of ten-year plus convictions may substantially
outweigh any prejudicial effect where the defendant's record shows "a continuing
course of conduct which was probative of ... credibility." State v. Johnson, 596
S.W.2d 97, 104 (Tenn. Crim. App. 1979). Here, the other four convictions, each of
which involved dishonesty, were less than ten years old. Taken together, the six
offenses, ranging from 1985 to 1994, established a continuing course of criminal
dishonesty. Yet the rule requires that the "probative value of the conviction,
supported by specific facts and circumstances, substantially outweigh[] its prejudicial
effect." Tenn. R. Evid. 609(b) (emphasis added).
While giving some deference to the ruling of the trial judge, it is our
view that the controlling test was not met. The prejudicial effect of similar crimes is
substantial. A series of criminal acts, regardless of their nature, suggests a
propensity to commit other crimes. A "substantial outweighing" of the probative
value requires, of course, a higher standard of assurance by the state before
6 admission. The record here simply does not contain specific "facts and
circumstances" which would support the admission of the two twelve-year-old
convictions under the exception to Rule 609(b). Id. In our assessment, the trial
court erred by admitting the 1985 convictions but the error was harmless in that it
had no effect on the results of the trial. See Tenn. R. App. P. 36(b).
The defendant also challenges the admissibility of his 1991 through
1994 burglary and theft convictions. He contends that the similarity between those
convictions and charges in this case causes a prejudice that outweighs the
probative value of the prior convictions. The state, of course, disagrees.
While the prior convictions for burglary were similar to the charges for
which the defendant was tried, that does not, as a matter of law, render evidence of
the prior offenses inadmissible. See State v. Gibson, 701 S.W.2d 627, 628-29
(Tenn. Crim. App. 1985) (prior drug convictions admissible in prosecution for
possession of drugs); State v. Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App. 1985)
(prior conviction for armed robbery admissible in prosecution for murder first degree
and armed robbery); and Johnson, 596 S.W.2d at 104 (prior conviction for burglary
admissible in prosecution for burglary). Prior crimes involving dishonesty bear
greatly upon credibility. If the defendant had testified, the trial would have amounted
to a swearing match between him and Officer Greenwood. The defendant's
credibility as a witness would have been critical to the jury's determination. Thus his
prior offenses had significant probative value for the state. In our view, the trial court
did not err by admitting the 1991 through 1994 convictions for impeachment
purposes.
The defendant insists, however, that the prejudicial effect of the prior
7 convictions could have been minimized if the state had referred to the convictions in
a "generic" fashion, rather than specifically identifying the nature of the crimes. In
Galmore, however, our supreme court ruled that "proper application of the balancing
test under Tenn. R. Evid. 609(a)(3) requires identification of the prior conviction."
Slip op. at 5. Our high court noted that not "identifying the felony ... would permit a
jury to speculate as to the nature of the prior conviction" and would hinder the jury's
ability to "properly weigh the conviction's probative value as impeaching evidence."
Id.
In summary, the trial court erred by admitting the 1985 convictions but
did not err by admitting the several other convictions for crimes involving dishonesty.
In our view, the admission of the 1985 offenses was harmless error. See Tenn. R.
App. P. 36(b) (Relief shall not be granted "unless, considering the whole record,
error involving a substantial right more probably than not affected the judgment or
would result in prejudice to the judicial process.") First, the state had a strong case
against the defendant. Officer Greenwood essentially caught the defendant "red-
handed." Secondly, it is unlikely the jury would have accredited the defendant's
proffered testimony due to the four other convictions that were admissible for
impeachment purposes.
II
Next the defendant contends that the trial court erred by the imposition
of consecutive sentences. When there is a challenge to the length, range, or
manner of service of a sentence, it is the duty of this court to conduct a de novo
review with a presumption that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon
the affirmative showing in the record that the trial court considered the sentencing
8 principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the
burden is on the defendant to show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Prior to the enactment of the Criminal Sentencing Reform Act of 1989,
the limited classifications for the imposition of consecutive sentences were set out in
Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court
ruled that aggravating circumstances must be present before placement in any one
of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the
court established an additional category for those defendants convicted of two or
more statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution:
[C]onsecutive sentences should not be routinely imposed . . . and . . . the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the
cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,
the codification of the holdings in Gray and Taylor; consecutive sentences may be
imposed in the discretion of the trial court upon a determination that one or more of
9 the following criteria2 exist:
(1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our supreme
court ruled that consecutive sentences cannot be required for any of the
classifications "unless the terms reasonably relate to the severity of the offenses
committed and are necessary in order to protect the public from further serious
criminal conduct by the defendant." Id. at 938. The Wilkerson decision, which
2 The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.
10 modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim.
App. 1991), governing the sentencing of dangerous offenders, described sentencing
as "a human process that neither can nor should be reduced to a set of fixed and
mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).
At the sentencing hearing on April 9, 1998, the trial court found that
the defendant "ha[s] a history of being a criminal who has made his livelihood, what
livelihood there is, from committing crimes." The trial court imposed consecutive
sentencing based on its findings that the defendant met two of the statutory criteria:
he is a professional criminal who has knowingly devoted himself to criminal acts as
a major source of livelihood and he is an offender with an extensive record of
criminal activity. See Tenn. Code Ann. § 40-35-115(b)(1), (2). These findings by
the trial judge are supported by defendant's numerous past convictions for theft and
burglary, his poor work history, and his admission that he engaged in theft to
support his drug habit.
In State v. Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995), this court
ruled as follows:
[Trial courts should] ensure that the aggregate sentence imposed should be the least severe measure necessary to protect the public from the defendant's future criminal conduct and should bear some relationship to defendant's potential for rehabilitation.
Id. at 33.
The defendant contends that his situation is analogous to that of the
defendant in Desirey. Desirey was convicted of four counts of bribing a public
servant and was sentenced to four consecutive four-year, six-month sentences. Id.
at 34. On appeal, this court modified the sentences so that three of the terms were
11 concurrent, resulting in an aggregate nine-year sentence. Id. at 34. The author
reasoned that four consecutive sentences were inappropriate because the
defendant had been convicted of non-violent offenses which "consisted of a short
series of similar, related conduct of an ongoing nature." Id. at 34. The court
commented that "offenses which overlap with the same intent can make concurrent
sentencing appropriate." Id. at 34 (citing State v. Holt, 691 S.W.2d 520, 522 (Tenn.
1984)).
Although the defendant, like Desirey, did commit non-violent offenses
which consisted of an ongoing series of related conduct, there is a significant
difference between this defendant and Desirey. The proof established that Desirey
possessed significant potential for rehabilitation. This defendant, on the other hand,
has continued to violate the law despite a number of opportunities at probation and
parole. His prior incarceration has been for relatively short periods of time. There is
little in this record to suggest that the defendant is prepared to change his course of
conduct. Considering the defendant's extensive criminal record, his history of
supporting himself through crime, and his past unwillingness to comply with
probation and parole, an aggregate eighteen-year sentence bears a reasonable
relationship to the seriousness of the crimes and is necessary to protect the public
from future criminal acts by the defendant. See Wilkerson, 905 S.W.2d at 938.
Accordingly, the judgment of the trial court is affirmed.
_________________________________ Gary R. Wade, Presiding Judge
12 CONCUR:
____________________________ Joseph M. Tipton, Judge
_____________________________ Thomas T. W oodall, Judge