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State v. Bondurant3/20/1998
artment. At that time, Denise was having sexual relations with the defendant; however, she claimed that she "prostituted" herself to the defendant because she was financially dependent upon him. Denise did not file for divorce until June 1990, after the defendant was arrested. She testified that she did not file for divorce sooner because she was afraid based on earlier statements made by the defendant.
In order to further explain her relationship with the defendant, Denise related the facts surrounding the Dugger murder. In May 1986, a party was held at the farmhouse in Elkton, where Denise and the defendant lived together prior to their separation. Denise testified how Dugger, who was heavily drugged, fell and hit her head. The defendant, Pete, and another man all wanted to have sexual relations with Dugger. Dugger was moved to various rooms, and Denise walked in while the defendant was having sex with her. Denise hit Dugger and slapped the defendant. The defendant began to tell Denise that she could have the car and other assets, as though he realized the marriage was over. The men then took Dugger outside to the barn but later brought her back into the house. Denise started slapping Dugger to wake her up. She also accused Dugger of sleeping with her husband. Dugger got up and started swinging at Denise with her arms. The defendant came into the room with a big stick and told Denise to use it on Dugger. Denise refused, realizing that Dugger was still heavily drugged. The defendant said "Well, I'll do it for you," and he started beating Dugger on the head. As Dugger tried to get up, the defendant beat her on the side to knock her down. Once Dugger was unconscious, the defendant engaged in sexual intercourse with her, until Dugger lost control of all bodily functions. While the defendant went to clean up, Pete shot Dugger in the head twice. Later, the defendant and Pete burned Dugger's body.
Because the defendant and Pete told Denise that if she ever reported Dugger's demise to the police, they would both implicate Denise and cause her child to be born in prison, she remained silent. She was also silenced by the defendant's statement that "united we stand, divided we fall," which Denise testified meant as long as the three of them stood together nobody would go to jail, but if one of them was to fall, all of them would go to jail.
In overruling the motion to keep Denise's testimony out, the trial court stated:
I'm going to overrule the motion. I just don't think it fits Adams.
For one reason, I cannot imagine -- first of all, I'm going to make a finding that this lady's silence was a silence because of fear from what she had witnessed and what she had been told. And secondly, I'm going to find that the relation -- in no way, in my opinion or in the opinion of the community, should this relation be one that should be sedulously fostered.
I mean, the facts we've heard, today, they're uncontroverted. The jury may not fine Mr. Bondurant guilty, but I just cannot believe that the marital privilege was created for a situation, such as we have heard in this case. For those reasons, I'm going to overrule your motion.
The applicable rule of marital privilege in this case was announced by our supreme court in McCormick, 135 Tenn. 218, 186 S.W. 95. As this court has held, the law regarding marital privilege is procedural rather than substantive in nature for purposes of ex post facto review. State v. Bragan, 920 S.W.2d 227, 241 (Tenn. Crim. App. 1995). As such, the marital privilege law at the time of the trial prevails.
We note that in Hurley, 876 S.W.2d 57, our supreme court modified the marital privilege in criminal cas
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