Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anderson v. Poltorak

Court of Appeals of Tennessee, Nashville

January 17, 2017

DAVID W. ANDERSON
v.
EDWARD POLTORAK ET AL.

          Session September 8, 2016

         Appeal from the Circuit Court for Davidson County No. 13-C382 Joseph P. Binkley, Jr., Judge

         This appeal arises from a civil action in which the jury returned a verdict in favor of Plaintiff for injuries sustained in a motor vehicle accident. Defendants appeal contending the trial court committed reversible error by limiting their impeachment of Plaintiff regarding three felony convictions. After applying the balancing test under Tennessee Rule of Evidence 403 to determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the trial court allowed Defendants "to question the plaintiff about whether he has been convicted of three felonies" but barred any questions about "the details regarding the nature of the convictions, types of convictions or the facts and circumstances surrounding the convictions." The dispositive issue is whether a party to a civil action has an absolute right under Tennessee Rule of Evidence 609 to impeach a witness with evidence of prior felony convictions including the details regarding the nature of his convictions, the types of convictions, or the facts and circumstances surrounding the convictions. Defendants contend the evidence was admissible as a matter of right under Tennessee Rule of Evidence 609; therefore, the trial court did not have the discretion to conduct a balancing test under Tennessee Rule of Evidence 403. Having determined that the trial judge had the discretion to conduct a balancing test under Tennessee Rule of Evidence 403 and that the court did not abuse its discretion in limiting the scope of Defendants' impeachment of Plaintiff, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Alan M. Sowell and Michelle Denise Reid, Nashville, Tennessee, for the appellants, Edward Poltorak and National Retail Systems, Inc.

          Brian P. Dunigan, Goodlettsville, Tennessee, for the appellee, David W. Anderson.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.

          OPINION

          FRANK G. CLEMENT, JR., P.J., M.S.

         This litigation arose from an automobile accident that occurred on February 11, 2012, involving David Anderson ("Plaintiff) and Edward Poltorak, who was driving an 18-wheeler at the time of the crash for National Retail Systems, Inc. d/b/a/ Keystone Freight Corporation. On January 28, 2013, Plaintiff filed suit against Mr. Poltorak and his employer (collectively "Defendants") alleging that he received personal injuries and damages as a result of Mr. Poltorak's failure to yield the right of way at the intersection. Defendants denied liability and claimed that Plaintiff ran the light.

         In preparation for trial, Defendants filed a motion in limine to impeach the credibility of Plaintiff by presenting evidence of his three prior felony convictions: receipt of child pornography, possession of child pornography, and transporting obscene matter. In response to Defendants' motion, Plaintiff argued that the felony convictions would be of "very marginal relevance to credibility, " and should be excluded because the probative value of the convictions is substantially outweighed by the danger of unfair prejudice to Plaintiff.

         Following a hearing on the motion, the trial court held that, although Plaintiffs three felony convictions met the criteria for use of impeachment evidence, the probative value of the convictions would be substantially outweighed by the danger of unfair prejudice to Plaintiff because "a juror learning about the child pornography convictions would be unavoidably angry, offended and motivated to punish the plaintiff, irrespective of the facts of this case." Based on these concerns, the trial court ruled that Defendants would be allowed "to question the plaintiff about whether he has been convicted of three felonies, " but barred any questions about "the details regarding the nature of the convictions, types of convictions or the facts and circumstances surrounding the convictions." The trial court's order reads, in pertinent part, as follows:

1. The plaintiff's three (3) felony convictions meet the two criteria set forth in Rule 609 [of the Tennessee Rules of Evidence] for use as impeachment evidence because the plaintiff was imprisoned for a total of 21 months (see Rule 609(a)(2) ("The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. . . [.]")) and less than ten (10) years have elapsed between the date of release and commencement of this action (see Rule 609(b) ("Evidence of 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. . . [.]")).
2. The balancing tests found in Rule 609 at sections (a)(3) and (b) do not apply to the circumstances of the plaintiff's convictions.
a. The Rule 609(a)(3) balancing test only applies to the accused in a criminal case. See Rule 609(a)(3) ("If the witness to be impeached is the accused in a criminal prosecution . . . the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues") (emphasis added).
b. The Rule 609(b) balancing test only applies if the witness was not confined or more than 10 years have elapsed since the date of release. See Rule 609(b) ("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. Evidence of a conviction not qualifying under the preceding sentence is admissible if . . . the court determines in the interest of justice that the probative value of the conviction . . . substantially outweighs its prejudicial effect.")).
3. The balancing test found in Rule 403 [of the Tennessee Rules of Evidence] applies to this case.
a. In making this finding, the Court relies on the Advisory Commission Comment to Rule 609 which states as follows: "For witnesses not covered by 609(a)(3), the balancing test is different. Rule 403 applies, and a conviction would be admissible to impeach unless 'its probative value is substantially outweighed by the danger of unfair prejudice' or other criteria listed in that rule." The only witness covered by Rule 609(a)(3) is "the accused in a criminal prosecution;" therefore, Rule 403 balancing necessarily applies to all witnesses who are not the accused in a criminal prosecution, including a witness in a civil case. See also Neil P. Cohen et al., Tennessee Law of Evidence § 6.09[5][a] ("For impeachment of a witness in a civil case. . . the Tennessee rule [609] is silent.... [however] the Advisory's Commission's Comment to Tennessee Rule 609 states the correct test. The balancing test under Rule 403 is to be used") (emphasis added).
b. In this case, the witness to be impeached with the three (3) felony convictions is a plaintiff in a civil case as opposed to the accused in a criminal prosecution; therefore, Rule 403 balancing applies to the plaintiff's convictions.
4. Applying the balancing test found in Rule 403, the probative value of the three (3) felony convictions regarding child pornography are substantially outweighed by danger of unfair prejudice to the plaintiff.
a. There is very little probative value in the three felony convictions because they do not arise out of this case nor are they related in any way to this case. The convictions are being ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.