DAVID W. ANDERSON
EDWARD POLTORAK ET AL.
Session September 8, 2016
from the Circuit Court for Davidson County No. 13-C382 Joseph
P. Binkley, Jr., Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
M. Sowell and Michelle Denise Reid, Nashville, Tennessee, for
the appellants, Edward Poltorak and National Retail Systems,
P. Dunigan, Goodlettsville, Tennessee, for the appellee,
David W. Anderson.
G. Clement, Jr., P.J., M.S., delivered the opinion of the
Court, in which D. Michael Swiney, C.J., and Andy D. Bennett,
G. CLEMENT, JR., P.J., M.S.
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.
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.
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
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
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[a]
("For impeachment of a witness in a civil case. . . the
Tennessee rule  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
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