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State v. Durham7/26/1999
State v. Hunter, No. 01C01-9506-CR-00176, 1996 WL 473999, at -4, to be analogous to the instant case. In Hunter, the State introduced testimony that the defendant informed his father-in-law four days prior to shooting the victim that the victim would "pay." Id. at *1. We concluded that the defendant's statement was highly probative on the issue of intent and affirmed the trial court's admission of the testimony. Id. at -4. Similarly, the appellant's prior statement in this case was highly probative on the issue of his intent. We submit that, within the bounds of rationality, it is impossible to interpret the appellant's statement as anything other that a threat to harm Mrs. Durham. As to the prejudicial impact of the appellant's statement upon the jury, any evidence is prejudicial. Davis, No. 03C01-9511-CC-00360, 1997 WL 184771, at *3. The issue is one of simple fairness. Id. We conclude that the trial court's ruling was eminently fair and consistent with due process of law. This issue is without merit.
c. Victim's Prior Statements
The appellant additionally contends that the trial court erroneously prohibited him from introducing Kara Higgins' testimony, describing her telephone conversation with Mrs. Durham on the evening before the murder. During this conversation, Mrs. Durham recounted another telephone conversation between her and the appellant on the same evening. The appellant asserts that Mrs. Durham's statements to Ms. Higgins were relevant to his state of mind at the time of the murder. Additionally, while conceding that the victim's statements constitute hearsay, the appellant contends that the statements were admissible pursuant to Tenn. R. Evid. 803(3), the "state of mind" exception to the general prohibition against hearsay. The appellant concludes that the trial court's ruling denied him due process of law.
The State responds that, despite the trial court's invitation, the appellant did not pursue a jury-out hearing for the purpose of determining the admissibility of this testimony. Therefore, the State asserts that the appellant has waived this issue pursuant to Tenn. R. App. P. 36(a). Additionally, the State argues that any error was harmless as the disputed evidence had already been presented to the jury during Ms. Coffey's testimony. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). See also State v. Cook, 816 S.W.2d 322, 326 (Tenn. 1991)(citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967) (error of constitutional dimensions will require reversal of a criminal conviction unless a reviewing court determines that the constitutional error was harmless beyond a reasonable doubt).
Initially, the State has apparently confused in its brief Mrs. Durham's telephone conversation with the appellant on the night prior to the murder and the telephone conversation several weeks earlier during which the appellant threatened Mrs. Durham. Ms. Coffey only testified concerning the latter telephone conversation. Moreover, the record reveals that the State is incorrect in asserting that the appellant did not pursue a jury-out hearing concerning Kara Higgins' testimony.
Prior to trial, the State submitted a motion to the trial court, asking that the trial court instruct defense counsel to approach the bench prior to eliciting testimony concerning any statements by the victim. During a pre-trial hearing, the State specifically cited possible testimony by the appellant's and the victim's daughter describing a telephone conversation with her mother on the night before the murder.
During this pre-trial hearing, the defense attorney described the daughter's expected testimony:
"Joyce Durham, had after speaking with [the app
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