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State v. Bondurant3/20/1998
(a)(3) and that the error was harmless. Id. at 622. Similarly, in State v. Burl Lakins, No. 32 (Tenn. Crim. App., Knoxville, May 24, 1991), the state filed its notice of intent to impeach the defendant with prior convictions at 4:30 on the afternoon before trial and notified defense counsel in a telephone call that night. Although defense counsel was aware of his client's prior conviction, he assumed the state did not intend to use the prior conviction as impeachment evidence because it had not so notified him in response to his pre-trial discovery request. Id., slip op. at 4. The trial court allowed the impeachment, despite the technical shortcoming of the state. When the defendant complained of this action to this court, we found he waived consideration of the notice issue by failing to raise it in his motion for new trial and by failing to cite authority to support his argument in his appellate brief. Id., slip op. at 6. Notwithstanding waiver of the issue, we went on to find the defendant failed to show he was prejudiced by the late notice, focusing on defense counsel's awareness of the prior conviction. Id., slip op. at 7.
In the case now before us, we fail to find error requiring reversal on this issue for two reasons. First, defense counsel failed to object to the prosecution's cross-examination of the defendant regarding his prior conviction. Under the authorities cited above, this inaction was a waiver of the issue for purposes of our review. See Tenn. R. App. P. 36(a). Second, the defendant has suffered no prejudice by the state's failure to follow Rule 609(a)(3). The defendant has made no claim that he would not have testified had he known his testimony was subject to impeachment via the prior murder conviction. In fact, trial counsel testified he was aware of the defendant's prior conviction, he thought it likely the evidence would be admitted for impeachment purposes, and he counseled the defendant to be prepared to be questioned about the prior conviction if he chose to testify. Moreover, in overruling the defendant's motion for new trial, the trial Judge stated that he found no error in the failure to hold a jury-out Rule 609 hearing, noting "the probative value of this testimony was so high as to be obvious to all parties and that a hearing outside the presence of the jury would not have resulted in a different opinion." Thus, the defendant was not deprived of the opportunity to make an "informed judgment" as to whether to testify, see Williams, 929 S.W.2d at 391, nor would the admission of the impeaching conviction have been disallowed had a hearing been held. Although we do not condone the state's failure to meet its obligations, especially in a capital case, we fail to see how this shortcoming prejudiced the defense, given the particular facts of this case.
With respect to the prosecution's introduction into evidence of the judgment document from the prior proceeding, we find the defendant waived any complaint to its admission by his failure to lodge a contemporaneous objection. See State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981). Also, the judgment document did not convey specific facts about the prior case, and any error that may have been committed when the document was introduced was undoubtedly harmless. Tenn. R. App. P. 36(b).
Next, the defendant alleges with respect to the Rule 609 issue that his trial counsel rendered ineffective assistance through taking no action to block the impeachment use of the prior murder conviction. Assuming, arguendo, that trial counsel's failure to request a Rule 609(a)(3) hearing or otherwise to object to the attack on the defendant's credibility through the use of the previous murder conviction constitutes ineffective assist
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