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State v. Pyburn8/16/2004
e was sufficient to support the appellant's conviction of first degree premeditated murder.
B. Prior Conviction
Next, the appellant contends that the trial court erred by allowing the State to introduce evidence of his prior conviction of aggravated robbery for impeachment purposes. The appellant concedes that simple robbery is a crime involving dishonesty, but argues that the offense of aggravated robbery "suggests injury and violence or threatened violence," thereby portraying the appellant as a violent person. The appellant asserts that the prejudicial effect of the aggravated robbery conviction outweighed its probative value on credibility. The appellant further asserts that the trial court made no finding as required by Rule 609 of the Tennessee Rules of Evidence that the probative value outweighed any unfair prejudicial effect. The State maintains that the trial court properly admitted the evidence of the appellant's prior conviction of aggravated robbery to impeach the appellant's testimony.
Rule 609(a) of the Tennessee Rules of Evidence provides, in pertinent part:
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:
(1) The witness must be asked about the conviction on cross-examination. . . .
(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.
"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." Tenn. R. Evid. 609(b).
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 impeaching conviction has to the issue of credibility.'" State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992) (quoting Neil P. Cohen et al., Tennessee Law of Evidence § 609.9, at 288 (2d ed. 1990)). A trial court's ruling under Rule 609 will not be reversed on appeal absent an abuse of discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).
Two months prior to trial, the State filed a Notice of Use of Prior Convictions for Impeachment Purposes, relying upon the appellant's 1981 convictions of passing a forged instrument, a 1983 conviction of burglary, and a 1991 conviction of aggravated robbery. In a jury-out hearing at the close of the State's case-in-chief, the appellant challenged the use of
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