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State v. Durham7/26/1999
d by the event or condition." One noted authority has described the rationales underlying this exception:
"First, since this exception applies to statements where it is likely there was a lack of reflection - and potential fabrication - by a declarant who spontaneously exclaims a statement in response to an exciting event, there is little likelihood, in theory at least, of insincerity. Rule 803(2) requires that the declarant must labor under the stress of excitement while speaking. . . . Second, ordinarily the statement is made while the memory of the event is still fresh in the declarant's mind. This means that the out-of-court statement about an event may be more accurate than a much later in-court description of it." Cohen, Sheppeard, and Paine, Tennessee Law of Evidence § 803(2).1, at 532 (3d ed. 1995).
Thus, in order to justify reliance upon the excited utterance exception to the hearsay rule, a defendant must establish three elements. First, he must demonstrate that there was a startling event. State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997). " he `event must be sufficiently startling to suspend the normal, reflective thought processes of the declarant.'" Id. (citation omitted). Second, the declarant's statement must relate to the startling event. Id. Third, the statement must be made while the declarant is under the stress or excitement from the event or condition. Id.
In this case, Mrs. Durham's telephone conversation with her husband was arguably a startling event. Moreover, Mrs. Durham's statements to Ms. Higgins described this telephone conversation. Finally, Ms. Higgins apparently intended to testify that Mrs. Durham recounted the telephone conversation to her immediately following the conversation, and Mrs. Durham was in "a very exaggeratedly upset state" and in "a fit of anger." Accordingly, Mrs. Durham's statements were admissible pursuant to the excited utterance exception to the hearsay rule.
Nevertheless, defense counsel did not rely upon the excited utterance exception before the trial court and does not rely upon it now. Under these circumstances, the appellant has waived any right to relief. Tenn. R. App. P. 36(a). In any case, any error was harmless beyond a reasonable doubt. As noted by the trial court, the appellant himself testified concerning the conversation at issue. Contrary to defense counsel's argument to the court prior to trial, the appellant was able to testify that the conversation occurred the night before the murder. Moreover, the appellant's sisters testified that the appellant believed his wife was having an affair. Finally, the evidence of premeditation and deliberation in this case was overwhelming. This issue is without merit.
d. Closing Argument
i. Scope of Rebuttal Argument
The appellant next argues that the State committed prosecutorial misconduct during closing argument by exceeding the scope of rebuttal argument. In reviewing allegations of prosecutorial misconduct, this court must first determine whether misconduct has in fact occurred, keeping in mind the trial court's wide discretion in controlling the argument of counsel. State v. Bush, 942 S.W.2d 489, 515 (Tenn. 1997). This discretion is rooted in the principle that closing argument is a valuable privilege for both the State and the defense and courts should afford wide latitude to counsel in presenting final argument to the jury. State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.), cert. denied, U.S. , 119 S.Ct. 343 (1998).
Generally, the bounds of proper argument are established by the facts in evidence, the character of the trial, and the conduct of opposing counsel. State v. Pulliam, 950 S.W.2d 360, 368 (Tenn. Cr
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