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State v. Durham7/26/1999
The appellant, Verlin Ralph Durham, appeals as of right his conviction by a jury in the Criminal Court for Washington County of premeditated first degree murder. The trial court imposed a sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant presents the following issues for our review:
"1. Whether the jury's verdict is supported by sufficient evidence. "2. Whether the trial court erroneously admitted testimony concerning a prior threatening statement made by the appellant to the victim, thereby violating the Tennessee Rules of Evidence and denying the appellant due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 8 of the Tennessee Constitution. "3. Whether the trial court erroneously prohibited the appellant's daughter from testifying concerning the victim's prior statements contrary to the rules of evidence and principles of due process. "4. Whether the prosecutor engaged in misconduct during closing argument. "5. Whether the trial court impermissibly advised the jury that a "good closing argument" should not exceed twenty minutes. "6. Whether the cumulative effect of the errors denied the appellant due process of law."
Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court.
I. Factual Background
The appellant's murder conviction arose from the fatal shooting of his wife, Joyce Durham, at a United gas station and convenience store on West Market Street in Johnson City, Tennessee. Testimony at trial revealed that the appellant and Mrs. Durham had separated in August 1996, following thirty-four years of marriage. Mrs. Durham moved to her mother's home following the separation and, in September 1996, petitioned the General Sessions Court of Washington County for an order of protection against her husband. In her petition, Mrs. Durham alleged that the appellant was engaging in "constant drinking, cussing, verbal and mental abuse, also destruction of personal property. And physical in past . . . . Coming on job drunk, calling work, employees names." Judge John Kiener, the general sessions court Judge who heard Mrs. Durham's petition, testified that he issued an order of protection, particularly instructing the appellant to stay away from Mrs. Durham's workplace.
Mrs. Durham worked at the United gas station and convenience store where she died on October 1, 1996. At trial, Lorrie Gloria Ann "Tiny" Coffey, a co-worker of Mrs. Durham, testified on behalf of the State, recounting events leading to Mrs. Durham's murder. She testified that, several weeks prior to Mrs. Durham's death, the appellant telephoned his wife at work. Ms. Coffey answered the telephone in the rear of the store. She recognized the appellant's voice, although his speech was slurred, and asked Mrs. Durham to pick up a telephone receiver where she was working in the front of the store. When Mrs. Durham picked up the receiver, Ms. Coffey continued to listen to the conversation. She testified at trial:
"Well, he was yelling, you know, screaming and cussing. He was wanting her to come home and she wouldn't go home. She told him no. . . . He said, "You'll know what -- you know what will happen to you."
On the night of the murder, the appellant entered the store a little after 9:00 p.m., at the Conclusion of Mrs. Durham's shift. Ms. Coffey testified that Mrs. Durham had just served a customer at the drive-up window, and Ms. Coffey was standing beside her. The appellant laid a rifle on the cash register and stated, "Bitch, this is what you've been waiting on." The appellant shot Mrs. Durham once before Mrs. Dur
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