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State v. Bondurant3/20/1998
my ride would pick me up to Ardmore. And about that time, Terri Lynn was found in the house, so I didn't go back for for(sic) like two or three weeks to get my clothes.
Q. Now, who is Terri Lynn?
A. Terri Lynn Clark.
Q. And was (sic) found in the house, how? What do you mean?
A. She was found, the way I understand it, she was found in the bed, dead.
During cross-examination of the defendant, the state asked him if his Elkton residence was the same "house they found Terri Lynn Clark in on November 17, one month after Ronnie Gaines' disappearance; two weeks after you told the officers that she was your alibi?" The fact of Clark's body being found at the farmhouse in Elkton was also raised during the state's closing argument in which the prosecutor stated that when Dickey started looking for Clark to verify the defendant's alibi, he ultimately found her "on November 17, 1986, at the home of Pat Bondurant's brother, in the bed, dead."
Trial counsel did not object to any of the references to Clark's body being found at the Elkton farmhouse. Accordingly, this issue has been waived. Tenn. R. App. P. 36(a). Regardless, we find that any error was harmless. Clearly, the fact of Clark's death was relevant to establish that the defendant's alibi could not be corroborated.
Regardless, the admission or exclusion of evidence is not a basis for error unless the ruling affects a substantial right of the party. Here, the testimony did not directly implicate the defendant in the murder of Clark. In fact, there was no testimony regarding the circumstances or cause of her death. Moreover, Dickey testified that when he told the defendant he would have to confirm the defendant's alibi with Clark, the defendant said "that's okay." And the defendant, during cross-examination, testified that he had no knowledge concerning Clark's death. Moreover, as stated earlier, we find that the evidence of the defendant's guilt was abundant. Accordingly, any error was harmless in light of the overwhelming evidence of the defendant's guilt. See Shelley, 628 S.W.2d at 438.
As to the state's reference during closing argument to the location of Clark's body, we find this too was harmless error. The standard of review in determining whether the trial court allowed counsel too much latitude during closing argument is abuse of discretion. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). Closing argument must be temperate, must be predicated on evidence introduced during the trial of a case, and must be pertinent to the issues being tried. Id. The prosecutor may state an ultimate Conclusion which would necessarily follow if the testimony of the prosecution witnesses were believed by the jury. Brown, 836 S.W.2d at 552. Although improper and irrelevant, we do not find that the prosecutor's single comment during closing argument constituted reversible error. Furthermore, while counsel should have objected to these references concerning the location of Clark's body, we find that the defendant has failed to demonstrate prejudice. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. We find no reversible error in this issue.
VIII. ADMISSIBILITY OF DEFENDANT'S PRIOR MURDER CONVICTION
The defendant argues that it was error to permit the state to cross-examine him about his second-degree murder conviction without giving written notice of its intent to use the prior conviction for impeachment purposes and without holding a jury-out hearing on the probative versus the prejudicial value of the conviction. The defendant also submits that it was error to allow the state to introduce the judgment document into evidence after the defendant ad
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