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State v. King4/30/1999
itation to relevant authority, and the particular portion of the instruction which the defendant finds improper is not identified. The page citation to the record regarding this argument is to a portion of the transcript memorializing the charge conference during which the trial court discussed the proposed charge, not to a page containing any offensive portion of the charge actually given. The duty of this court is one of review of issues properly presented, not speculation regarding every possible variation of issues improperly presented. Dewayne King has waived our consideration of this issue. See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P. 27(a), (g), (h).
X
Finally, Dewayne King questions whether the trial court erroneously excluded evidence about Greg Kelsey's prior conviction of a crime involving use of a gun. Kelsey testified for the state. On cross-examination, he denied having ever possessed a gun. The defense sought to impeach him on this declaration with evidence of a robbery conviction which apparently involved the use of a gun. The court ruled that he could be asked the date of the conviction, but extrinsic evidence of his gun possession would be necessary to impeach his denial of having ever possessed a gun. The defense never presented any such evidence.
As with several previous issues, the defendant's argument on this issue is deficient in argument, citations to authority and citations to the record. Again, the issue has been waived. See Tenn. R. Ct. Crim. App. 10(b); Tenn. R. App. P. 27(a), (g), (h). We address it only briefly to assist the trial court on remand.
Evidence that Kelsey had employed a gun in an earlier crime was relevant impeachment evidence on the material issue whether Kelsey had a gun in the Maxima on June 25, 1995. See Tenn. R. Evid. 401. Impeachment of a witness by extrinsic evidence is limited in Tennessee by the collateral evidence rule. See, e.g., State v. Perkinson, 867 S.W.2d 1, 6-7 (Tenn. Crim. App. 1992). Under the rule, cross-examination of a witness about facts contradictory to the witness's testimony is the only method for bringing out "collateral" facts. Id. at 6. So-called collateral facts are those whose only relevance is to contradict in-court testimony. Id. In this case, however, the fact that Kelsey may have possessed a gun, contrary to his in-court statement, was not collateral; therefore, it was the proper subject of extrinsic proof. The trial court correctly ruled, and the defense could have presented this evidence if it had a witness or other proof to substantiate its claim.
In Conclusion, we reverse and remand this matter for a new trial.
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
DAVID G. HAYES, JUDGE
JERRY L. SMITH, JUDGE
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