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State v. Bondurant3/20/1998
mitted he had previously been convicted of second-degree murder. Moreover, the defendant contends that the slight value of his prior homicide conviction on the issue of credibility did not outweigh its unfair prejudicial effect on the substantive issues. To the extent trial counsel failed to object, the defendant claims it was ineffective assistance of counsel.
During cross-examination of the defendant, the state asked whether the defendant had been convicted of second-degree murder in Giles County, Tennessee. In response, the defendant admitted the conviction. Then the state asked the defendant to identify the judgment document. Defense counsel objected, and the trial court sustained the objection. The state, however, was then allowed to enter the judgment into evidence without objection. No facts of the crime were included in the judgment document.
At the hearing on the motion for new trial, trial counsel testified that he did not ask for a jury-out hearing because he assumed the second-degree murder conviction was admissible for impeachment purposes. In fact, the potential use of this previous conviction for impeachment purposes was considered by counsel in determining whether the defendant should testify on his own behalf.
Pursuant to Tennessee Rules of Evidence 609, the state may use a prior conviction to impeach a defendant during cross-examination if the conviction meets the following criteria: (a) the conviction was for a crime punishable by death or imprisonment in excess of one year or a misdemeanor conviction involving dishonesty or a false statement, (b) less than ten years has elapsed between the date the accused was released from confinement and the commencement of the prosecution, (c) the state must give reasonable written notice of the particular convictions it intends to use to impeach the accused prior to trial, and (d) the trial court must find the probative value of each conviction on the issue of credibility outweighs its unfair prejudicial effect on the substantive issues. State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). A conviction may only be established by public record if the witness denies having been convicted. Tenn. R. Evid. 609(a)(1). "The purpose of determining the admissibility of [evidence of a defendant's criminal convictions] prior to the accused's testimony is to allow a defendant to make an informed judgment as to whether to testify." State v. Williams, 929 S.W.2d 385, 391 (Tenn. Crim. App. 1996) (quoting State v. Hugh Williams, No. 02C01-9209-CR-00220, slip op. at 24 (Tenn. Crim. App., Jackson, Oct. 12, 1994)).
In the present case, the state failed to give the defendant reasonable written notice of its intent to use the second degree murder conviction for impeachment purposes, and neither party requested a jury-out hearing on the admissibility of the conviction prior to the defendant taking the stand. Tenn. R. Evid. 609(a)(3); see Farmer, 841 S.W.2d at 839. However, on the facts of this case, we hold that this error was not fatal.
Where the state has failed to live up to its procedural duties, but the defendant is nevertheless on notice before the trial that he may be impeached by his prior convictions, this court has looked to whether the defendant has suffered prejudice as a result of the state's shortcomings. For example, in State v. Barnard, 899 S.W.2d 617 (Tenn. Crim. App. 1994), the state sent a discovery response to defense counsel setting forth the defendant's criminal record. The state did not, however, file a written notice of its intent to use one of the convictions for impeachment. This court held that the defendant had not been "unduly prejudiced" by the state's failure to comply with Rule 609
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