State v. Jerry Wayne Gifford

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9809-CC-00396
• Status: Published

Opinion

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