State v. Durham7/26/1999
ess each part of the combined statements conforms with an exception to the hearsay rule. See, e.g., State v. Tolbert, No. 03C01-9707-CR-00325, 1998 WL 694931, at *13 (Tenn. Crim. App. at Knoxville, October 7, 1998), perm. to appeal denied, (Tenn. 1999).
To summarize, Kara Higgins' proposed testimony consisted of Mrs. Durham's statements on the night before the murder that (1) Mrs. Durham had spoken with the appellant on the telephone on that evening; (2) the appellant had accused her of having an affair; and (3) she had hung up on the appellant. We first note that this is not a case of hearsay within hearsay. Had the victim been able to testify concerning the appellant's accusation that she was having an affair, the appellant's accusation would have been admissible. The accusation did not constitute hearsay, as it was not proffered as proof of the fact contained in the accusation, but rather as proof that the accusation had been made and as proof of the appellant's mental state. See, e.g., State v. Wesemann, No. 03C01-9404-CR-00144, 1997 WL 348869, at *8 (Tenn. Crim. App. at Knoxville, June 25, 1997), perm. to appeal denied, (Tenn. 1998). See also State v. Roe, No. 02C01-9702-CR-00054, 1998 WL 7107, at *11 (Tenn. Crim. App. at Jackson, January 12, 1998), perm. to appeal denied, (Tenn.), cert. denied, U.S. , S.Ct. (1999)(" he key to determining whether a statement is hearsay is the purpose for which it is offered"). However, Mrs. Durham's statements as recounted by her daughter, including Mrs. Durham's account of the appellant's accusation, did constitute hearsay, and we conclude that the statements were not encompassed by the hearsay exception set forth in Tenn. R. Evid. 803(3).
Rule 803(3) provides:
"A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed . . . ."
Mrs. Durham's statements were clearly statements of a memory, i.e., her memory of the telephone conversation with her husband. Additionally, the appellant intended to introduce the statements to prove the fact remembered. Thus, the appellant's reliance upon Rule 803(3) is mistaken.
Moreover, the appellant has repeatedly argued that the telephone conversation between himself and Mrs. Durham on the night before the murder was relevant to prove his state of mind at the time of the murder. Our supreme court and this court have held that only the declarant's conduct or state of mind, and not that of some third person, is provable by this exception. State v. Hutchison, 898 S.W.2d 161, 171 (Tenn. 1994); State v. Farmer, 927 S.W.2d 582, 595 (Tenn. Crim. App. 1996); State v. Leming, No. 01C01-9704-CR-00151, 1998 WL 707801, at *10 (Tenn. Crim. App. at Nashville, October 9, 1998); State v. Hall, No. 02C01-9703-CC-00095, 1998 WL 208051, at *13 (Tenn. Crim. App. at Jackson, April 29, 1998); Roe, No. 02C01-9702-CR-00054, 1998 WL 7107, at *11; State v. Sherrod, No. 01C01-9505-CR-00157, 1997 WL 34429, at *7, (Tenn. Crim. App. at Nashville, January 30, 1997). Accordingly, the appellant's attempt to prove his state of mind by introducing Mrs. Durham's statements was an improper use of the state of mind exception to the hearsay rule.
The trial court did note that Mrs. Durham's statements might qualify as an excited utterance under Tenn. R. Evid. 803(2). Rule 803(2) provides that an excited utterance is excluded from the hearsay rule and defines an exited utterance as " statement relating to a startling event or condition made while the declarant was under the stress of excitement cause
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