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State v. Strombergh3/22/2002
o impeachment does not prohibit admission of the impeaching conduct. However, no such circumstances are present in this case.
Furthermore, it is somewhat unclear from the record as to whether the trial court made a proper determination under Rule 608 concerning the probative value of the contested evidence. The trial court in this case conducted a brief bench conference prior to admitting the evidence. Nevertheless, many of the trial court's comments at the bench conference are not included in the record because they were inaudible. At the conclusion of the hearing, the trial court merely stated, "The whole issue in this case is credibility."
Based upon our review of the record, we conclude that the unfair prejudicial effect of the evidence outweighed its probative value as to the Defendant's credibility. This Court has stated that when "considering whether the probative value of prior convictions outweighs their prejudicial effect under either Rule 608 or 609 [of the Tennessee Rules of Evidence], trial courts must (a) `assess the similarity between the crime on trial and the crime underlying the impeaching conviction' and (b) `analyze the relevance the impeaching conviction has to the issue of credibility.'" State v. Steven O. Ford, No. 01C01-9403-CC-00089, 1995 Tenn. Crim. App. LEXIS 753, at *12 (Tenn. Crim. App., Nashville, Sept. 14, 1995) (quoting Neil P.Cohen et al., Tennessee Law of Evidence § 609.9 (2d ed. 1990)). Although similarities between the impeaching offense and the crime for which the defendant is on trial do not, as a matter of law, render the impeaching evidence inadmissible, "the admission of a prior conviction which is closely related to the charged offense requires heightened scrutiny." Id. (citing Long v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980)). By analogy, if the impeaching conduct is closely related to the charged offense, it stands to reason that heightened scrutiny is also required when determining whether evidence of the impeaching conduct should be admitted into evidence.
In this case, as in Fleece, the impeaching evidence "gave rise to the impermissible inference that appellant had a previous DUI conviction," 925 S.W.2d at 561, the same crime with which the Defendant stood charged at trial. We thus conclude, as did this Court in Fleece, that because admission of this evidence raised such a strong inference of a prior DUI conviction, the Defendant's "chance of receiving a fair trial became remote." Id. Furthermore, we simply cannot conclude that the trial court's error in admitting the impeaching evidence in this case did not affect the judgment or result in prejudice to the judicial process. See Tenn. R. App. P. 36(b); see also Tenn. R. Crim. P. 52(a). Therefore, we must REVERSE the judgment of the trial court and REMAND the case to the trial court for a new trial.
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