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State v. Durham7/26/1999
ellant] on the telephone in response to that, had called her daughter immediately thereafter and made statements in a very exaggeratedly upset state, and said to the daughter that, "Verlin just called me", used some rather graphic language and said in fact, the pertinent part, that she said, "Well, what did you do when he called?" and she said, "I hung up on him. I hung up."
The defense attorney argued to the trial court that the daughter's testimony was relevant to the appellant's state of mind at the time of the murder. According to counsel, the appellant intended to testify that his actions were precipitated by his telephone conversation with his wife. Additionally, defense counsel noted that the daughter's testimony was particularly critical, because the appellant could not recall when the conversation with his wife had occurred.
After hearing argument by counsel, the trial Judge stated that he would need to hear the witness' testimony before ruling upon its admissibility. Accordingly, he granted the State's motion and ordered defense counsel to approach the bench prior to eliciting the aforementioned testimony. The court opined, however, that the testimony was "very likely hearsay within hearsay and [would] be excluded."
Prior to the presentation of the appellant's proof and in accordance with the trial court's order, defense counsel indicated that he wished to make an offer of proof to the court outside the jury's presence. He explained that he wanted to introduce the testimony of Kara Higgins, the appellant's and the victim's daughter. According to defense counsel, Ms. Higgins would testify that, at the appellant's request, she called her mother on the evening prior to the murder. Ms. Higgins conveyed to Mrs. Durham the appellant's request that the victim accompany the appellant and their grandchildren to a restaurant on the occasion of their wedding anniversary. Soon after concluding this telephone conversation,
" he decedent called [Ms. Higgins] back in a fit of anger, anger directed toward the other daughter, Sherry, and that she says, I had to slap Sherry over her boyfriend and being mean to my granddaughter, and to get even with me, Sherry has told your daddy about me and another man because he called me at the store and asked me about it. And Kara would then testify, I asked Mother, well Mother, what did you say to Daddy? And she will -- she will testify that the mother said, I hung up on him."
Defense counsel again argued to the trial court that the testimony was relevant to the appellant's state of mind.
The record suggests that defense counsel was prepared to present Ms. Higgins' testimony to the trial court during this jury-out hearing. Nevertheless, on the basis of defense counsel's summation of the proposed testimony, the court concluded that the evidence was inadmissible. The court stated that "what the deceased told her daughter has no relevance to any issue in the case. . . . I see absolutely no relevance in that and -- and it will not be allowed. [The appellant] can testify to all those matters."
Thus, we conclude that the appellant has preserved this issue for appeal, and we address the merits of the appellant's argument. Again, the appellant concedes that the proposed testimony constituted hearsay. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn. R. Evid. 801(c). Hearsay is inadmissible in Tennessee unless it falls within an enumerated exception. Tenn. R. Evid. 802; State v. Bragan, 920 S.W.2d 227, 242 (Tenn. Crim. App. 1995). Moreover, hearsay within hearsay is inadmissible unl
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