Direct Appeal from the Circuit Court for Giles County No. 3990 Jim T. Hamilton, Judge.
Petitioner, Hugh Peter Bondurant ("Pete Bondurant") and his twin brother, Kenneth Patterson Bondurant ("Pat Bondurant"), were convicted in 1991 of the second degree murder of Gwen Swanner Dugger. In 2006, Petitioner filed a petition for writ of error coram nobis in which he asserted a claim of newly discovered evidence in the form of Pat Bondurant's statement that Petitioner did not participate in the murder of Ms. Dugger. On appeal, Petitioner contends that the trial court erred in summarily dismissing his petition without granting him an evidentiary hearing. After a thorough review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
The opinion of the court was delivered by: Thomas T. Woodall, Judge
Assigned on Briefs May 21, 2008
THOMAS T. WOODALL, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT WILLIAMS, JJ., joined.
The facts surrounding Petitioner's conviction were summarized by a panel of this Court in the direct appeal as follows:
This case involves the homicide of Gwen Swanner Dugger (victim). On May 30, 1986, Ken Swanner testified that he and his sister, the victim, went to the appellants' residence to repair a car. While Mr. Swanner was working on the vehicle, the victim went into the appellants' house. After the repairs were made, Mr. Swanner walked up to the house and asked the victim "if she was ready to go." The victim followed Mr. Swanner outside and informed him that "she was going to stay." Mr. Swanner never saw the victim again.
Approximately one week later, the victim's family became concerned after not hearing from the victim. Ken Swanner returned to the appellants' residence. He asked the appellant, Pat Bondurant, and his wife, Denise, if they knew the victim's whereabouts. They responded that they did not know. Several days later, Mr. Swanner saw the appellant Pete Bondurant. He questioned Pete concerning the victim's whereabouts. Pete responded: "I dropped her off at Shady Lawn last week."
In June of 1986, Jack Swanner and Ken Swanner embarked on another effort to locate the victim. While en route to the appellants' residence, they observed Pete Bondurant on the interstate. They followed Pete to a night club. At the night club, the Swanners confronted Pete. Pete stated, "I didn't kill her.... I ain't done nothing. Leave me alone. I'm crazy." The club's owner came outside and told them to "break it up." Pete then backed into the nightclub yelling that "he was crazy; that he had killed once; he'd kill again." The Swanners left.
In 1990, Investigator William Coleman approached Denise Bondurant. Denise was separated from the appellant, Pat Bondurant. She stated that she was afraid Pat would hurt someone else. Therefore, she gave Investigator Coleman a statement concerning the victim's death. She was later given immunity from prosecution.
Denise Bondurant testified that on May 30, 1986, she, Pat Bondurant, Pete Bondurant, Dwayne Howell, and Gary Hardin were all present at the Bondurant residence when the victim and her brother arrived. Denise stated that the victim walked up to the house and purchased Valium from the appellant Pat Bondurant. She testified that although Ken Swanner wanted the victim to leave with him, the victim decided to "stay and party." She stated that everyone there "was drinking and doing drugs, except for [her]." She attributed her abstinence to her pregnancy.
Later in the evening, Denise testified that Pat told her to "put on some steaks." She stated that the victim attempted to assist her. However, the victim was so intoxicated she could "barely even stand up." In addition to the Valium and beer, Denise stated that "Pete had given her some Placidyls."
Denise stated that Gary Hardin was "trying to make a pass at [the victim]" while they were in the kitchen. Pat, however, came into the kitchen carrying a .38 caliber pistol. She testified that Pat said "if anyone's getting her, Pete's going to have her her [sic] first, because he had bought her drugs." Pete then took the victim into the bathroom. Denise stated that she saw the victim performing fellatio on Pete in the bathroom.
Denise testified that later "Dwayne came back in the kitchen, and I felt like he was trying to keep me in there; you know, that he was stalling, you know, for conversation." She stated that she became "suspicious of what's going [on in the] front of the house." She stated that she went up front and noticed that the bedroom door was closed. Although Gary was holding the door shut from the inside, she forced her way in and found Pat having sex with the victim. She stated that she hit both Pat and the victim, gathered up some clothes, and left.
Gary Hardin testified that after Denise left, he and Pete "got [the victim] up." They carried her, while nude, outside and put her in a car. They then drove her down to the barn. He testified that the victim was "messed up" and mumbling. Gary stated that after the victim was taken to the barn, he, Pete, and Dwayne all had sex with her. Dwayne testified that when they finished with the victim, they left her lying in the barn and went to the house to eat.
Patricia Howell Love testified that she worked in a strip bar across the street from the Bondurants' residence. She stated that on the evening of May 30, 1986, Pete entered the club and said "he had a whore tied up to a bale of hay, if anybody needed a good f___."
Denise testified that after she had left the house, she drove to the interstate and headed toward Alabama. When she got to the Ardmore-Huntsville exit, she turned around and headed back home. Denise returned to the house and found that Gary and Dwayne had not left. She again instructed them to leave. They then left.
Denise walked into the house and found that the victim had been brought back up to the house from the barn. Denise stated that she walked into the room where the victim lay nude on a mattress. She tried to wake her by "nudging her with [her] foot." She stated that the victim was unresponsive so she "started smacking her in the face, trying to get her to awake." She stated that the victim starting "coming to" but described the victim as "groggy."
As the victim regained consciousness, Denise began accusing the victim of having sex with her husband, Pat. The victim denied her allegations. Denise stated that "right then [she saw] that [the victim] was not aware of what had happened." Denise stated that she hit the victim. She, however, described the victim as being helpless and unable to defend herself "so [Denise] stepped out of the way."
Denise then described the victim's murder. She stated that Pat walked in from the back of the house. He was carrying a big stick or ax handle. She stated that Pat told her to use the stick on the victim. Denise responded, "Pat, look at her. I don't need that." Pat then said, "Well, I'll do it for you."
Denise testified that Pat began the assault by striking the victim on top of the head with the ax handle. She stated that she saw blood on both the victim and the weapon. She stated that Pat then hit her a second time. The victim fell to her knees. Denise testified that she told Pat to "please stop before you hurt her really bad." However, as the victim was attempting to rise, Pat struck her again. She believed that the third blow was to the victim's side. She stated that the blow to the side "flung [the victim] across the room." She estimated that Pat administered nine to twelve blows to the victim.
After Pat ceased striking the victim with the ax handle, he began having sexual intercourse with her. Denise stated that he raped the victim vaginally and anally. While raping the victim vaginally, "Pat made the statement to Pete that [the victim] was peeing ... like it was something really funny to him." Denise further testified that while Pat was anally raping the victim, the victim began losing her bowel on him about which Pat also commented. After climaxing, Pat offered the victim to Pete. Denise stated that Pete "turned it down." She then testified that she told Pat he ...