State v. Bondurant3/20/1998
ance of counsel, we nevertheless hold that the defendant has failed on appeal to show that such ineffectiveness prejudiced him under the second prong of the Strickland test. We find that this Conclusion is supported by either of two bases. Essentially, there is no Strickland prejudice because (1) had counsel obtained a pre-impeachment, balancing-test review, the result on the use of the conviction would have been the same, and (2) the defendant has failed to show that, even without the impeachment via the prior conviction, the verdict would have been different.
As to the first basis, we noted above that the trial Judge indicated he would have allowed the use of the prior conviction for impeachment purposes. Had the trial court so ruled, the defendant on appeal would have been met by the well-established rule that issues concerning the admissibility of evidence rest within the sound discretion of the trial court and an appellate court will not interfere with the exercise of this discretion absent a clear abuse appearing on the face of the record. State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). These rules have been applied to trial court determinations under Rule 609. State v. Sheffield, 676 S.W.2d 542, 549 (Tenn. 1984) (applying Fed. R. Evid. 609, under State v. Morgan, 541 S.W.2d 385 (Tenn. 1976)); State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996); State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993); State v. Robert Harrison Blevins, No. 03C01-9606-CC-00242 (Tenn. Crim. App., Knoxville, May 23, 1997); State v. Jerry Lee Finch, No. 02C01-9309-CC-00224 (Tenn. Crim. App., Jackson, June 7, 1995), perm. app. denied (Tenn. 1995). Thus, in order to show that he was prejudiced by ineffective assistance of counsel on this issue, the defendant would be required to show that the trial court, in allowing the impeachment evidence, would have committed a clear abuse of discretion. Although the trial Judge provided no insight into his theoretical ruling, we note that caselaw exists to support a decision to admit the evidence. See State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App. 1996); State v. Stafford, 670 S.W.2d 243 (Tenn. Crim. App. 1984) (prior to adoption of Tennessee Rules of Evidence); State v. Roman Earl Warner, No. 02C01-9204-CC-00078 (Tenn. Crim. App., Jackson, July 21, 1993); State v. Burl Lakins, No. 32 (Tenn. Crim. App., Knoxville, May 24, 1991); State v. Milburn Greene, No. 317 (Tenn. Crim. App., Knoxville, Nov. 7, 1990). The impeaching conviction need not intrinsically suggest "dishonesty or false statement," Blanton, 926 S.W.2d at 960 (Tenn. Crim. App. 1996); Tune, 872 S.W.2d at 927 (Tenn. Crim. App. 1993), such that, in balancing the probative value as to credibility against the unfair prejudicial effect as to the substantive issues, the trial court may consider whether the prior conviction involves "disregard of legal and moral rules of civilized society . . . serious enough to be punishable by imprisonment in excess of one year." State v. Sheffield, 676 S.W.2d at 549. See also Blanton, 926 S.W.2d at 960. In light of such considerations, the defendant has not shown that the trial court would have clearly abused its discretion had it ruled to allow the impeachment evidence.
Second, Strickland prejudice is not present because there was no showing that, had the prior conviction not been used, the verdict on guilt would have been different. The evidence against the defendant was prodigious. According to the state's evidence, the defendant expressed his animosity for the victim to his wife and later admitted having killed the victim to his wife and a co-worker. Bone fragments wer
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