Shearon v. Womack et al

Filing 155

ORDER: For the reasons given on the record, as well as the reasons below, the Court EXCLUDES all criminal convictions from being presented to the jury. Signed by Chief Judge Waverly D. Crenshaw, Jr on 12/19/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DAVID SHEARON,
Plaintiff,
v.
COLEMAN WOMACK,
Defendant.

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No. 3:15-cv-01061
CHIEF JUDGE CRENSHAW

ORDER
On December 19, 2017, Defendant informed the Court that he will object to Plaintiff using
prior criminal convictions to impeach one of his witnesses, Eric Jennings. Jennings, who was the
at-fault driver when he rear-ended Plaintiff, witnessed the field sobriety tests and Plaintiff’s
interaction with Defendant. Plaintiff seeks to use a January 8, 2008 conviction for being a
convicted felon in possession of a firearm, for which Jennings was released from custody on
February 1, 2013. See United States v. Jennings, No. 3:07-cr-16, ECF Nos. 37 and 74 (M.D. Tenn.)
(judgment and petition to revoke of supervised release, indicating Jennings began supervision on
February 1, 2013). Jennings also had three separate felony drug convictions in 1999 and 2000.
Jennings also received misdemeanors in 2005 for criminal impersonation, a drug conviction in
1992, and a shoplifting conviction in the late-1990s. For the reasons given on the record, as well
as the reasons below, the Court EXCLUDES all criminal convictions from being presented to the
jury.
Impeachment by a criminal conviction is governed by Federal Rule of Evidence 609. The
Court must admit the evidence in a crime for an offense that was “punishable by death or by
imprisonment for more than one year,” subject to Rule 403. FED. R. EVID. 609(a)(1)(A). The Court

must also admit evidence of any crime if the elements of the crime including the witness’s
dishonest act or false statement. Fed. R. Evid. 609(a)(2). However, if ten years has past since the
witness’s conviction or release from confinement for the crime, the evidence is only admissible if
“its probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect.” Fed. R. Evid. 609(b)(1).
The probative value of convictions not tending to show dishonesty or distrust has been
documented since 1884:
When it is proved that a witness has been convicted of a crime, the only ground for
disbelieving him which such proof affords is the general readiness to do evil which
the conviction may be supposed to show. It is from that general disposition along
that the jury is asked to infer a readiness to lie in the particular case, and thence that
he has lied in fact. The evidence has no tendency to prove that he was mistaken,
but only that he has perjured himself, and it reaches that conclusion solely through
the general proposition that he is of bad character and unworthy of credit.
Green v. Bock Laundry Mach. Co., 490 U.S. 508 n.4 (1989) (quoting Gertz v. Fitchburg
R.R. Co., 137 Mass. 77, 78 (1884)).
The only crime that Plaintiff informed the Court is within ten years is the 2008 firearms
conviction. Evidence of this conviction must be admitted, subject to Rule 403. “Convictions for
murder, conspiracy, robbery, and weapons possession are generally not particularly probative as
to honesty or veracity.” Somerville v. Saunders, No. 9-11-cv-556, 2014 WL 272415, at *8
(N.D.N.Y. Jan. 24, 2014) (citing United States v. Estrada, 430 F.3d 606, 617-18 (2d Cir. 2005));
see Clem v. Lomeli, No. 2:05-cv-2129, 2007 WL 2688842, at *2 (E.D. Cal. Sept. 13, 2007)
(finding that convictions of second degree murder, false imprisonment, terroristic threats, and
possession of a firearm by a felon were not probative to an excessive force claim arising from
conduct of officers inside the jail). Especially because Jennings is only being called as an eyewitness to the interaction between Plaintiff and Defendant, the Court finds that the very limited

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probative value, if any, is substantially outweighed by the unfair prejudice of labeling the witness
as a “felon.” As such, this conviction is excluded.
Plaintiff did not contest Defendant’s assertion that the drug convictions are more than ten
years old, and therefore fall under Rule 609(b). Under Rule 609(b), Plaintiff did not prove that the
limited probative value of any such drug conviction substantially outweighed the unfair prejudice
of admitting the convictions. This case is not about Jennings’ drugs—it is about whether Plaintiff’s
interaction with Defendant would lead a reasonable officer to believe Plaintiff was on drugs.
Jennings’ 10-year-old conviction is excluded
The misdemeanor convictions that involve Jennings’ dishonest acts or false statements are
also excluded. The Court weighs five factors in determining the admissibility of the stale
convictions: “(1) the impeachment value of the prior crime; (2) the point in time of the conviction
and the witness’ subsequent history; (3) the similarity between the past crime and the charged
crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility
issue.” United States v. Huff, 149 F.3d 1185, at *2 (6th Cir. 1998) (table) (citing United States v.
Sims, 588 F.2d 1145, 1149 (6th Cir. 1978)). Convictions over ten years old, or “stale convictions,”
should be admitted “very rarely and only in exceptional circumstances.” Id. (citing Sims, 588 F.2d
at 1147). This is not that rare case. The two stale convictions at issue—criminal impersonation and
shoplifting—from twelve years and about twenty years earlier have no value on the jury’s ability
to judge Jennings’ credibility. Jennings is just an eye witness, and the probative value of attempting
to impeach him with stale convictions does not substantially outweigh the unfair prejudice.
Accordingly, all criminal convictions are excluded.

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IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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