State v. Payne11/20/2002
viding the following signed, handwritten instruction: "Members of the Jury, there was some testimony presented about a Robbery of Eric Rogers by Keith Brown. [The defendant] has not been charged with that offense and you are not to decide this case based upon any crime that may have been committed against Eric Rogers." We, therefore, conclude that the trial court did not err in admitting the evidence.
II. Admissibility of Keith Brown's Statement, "Derek, don't shoot," to Defendant
The defendant next contends that the trial court erred by allowing Eric Rogers to testify that he heard Keith Brown call out, "Derek, don't shoot. Derek, don't shoot," just before the victim was shot, arguing the statement was inadmissible hearsay that violated his right to confrontation. The State contends, inter alia, that the trial court properly admitted the statement under the excited utterances exception to the rule against hearsay.
A hearsay statement 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). As a general rule, hearsay is not admissible at trial unless it falls under one of the exceptions to the rule against hearsay. Tenn. R. Evid. 802. "The determination of whether a statement is hearsay and whether it is admissible through an exception to the hearsay rule is left to the sound discretion of the trial court." State v. Stout, 46 S.W.3d 689, 697 (Tenn.), cert. denied, 534 U.S. 998, 122 S. Ct. 471, 151 L. Ed. 2d 386 (2001). As such, we will not reverse the trial court's ruling absent a showing that it abused its discretion. Id.
The trial court ruled the statement admissible under the excited utterances exception to the rule against hearsay, which provides that an otherwise inadmissible hearsay statement is admissible if shown to be "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." See Tenn. R. Evid. 803(2). Were we to determine that Brown's words constituted hearsay, we would conclude that the events that transpired immediately before he spoke were sufficiently startling to warrant admission of the statement as an excited utterance. However, commands, instructions, and questions often are not hearsay because they are not offered to prove the truth of their content. See State v. Lequire, 634 S.W.2d 608, 612 (Tenn. Crim. App. 1981); State v. Oneal Sanford, No. E1999-02089-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 440, at -20 (Tenn. Crim. App. June 18, 2001), perm. to appeal denied (Tenn. Nov. 5, 2001); State v. Lucien Samuel Sherrod, No. 01C01-9505-CR-00157, 1997 Tenn. Crim. App. LEXIS 89, at *19 n.5 (Tenn. Crim. App. Jan. 30, 1997); State v. Reginald S. Mabone, No. 02C01-9203-CR-00054, 1993 Tenn. Crim. App. LEXIS 462, at *3 (Tenn. Crim. App. July 21, 1993), perm. to appeal denied (Tenn. Oct. 4, 1993). Thus, this court has previously held that a declarant's instruction to "shoot this mother-fucker" did not qualify as hearsay because it was not offered to prove the truth of the matter asserted. Mabone, 1993 Tenn. Crim. App. LEXIS 462, at *2. In this case, we likewise conclude that Brown's command to the defendant not to shoot the victim does not qualify as hearsay. Therefore, although the trial court erred in finding the statement admissible under the excited utterances exception to the rule against hearsay, it did not err in admitting the statement.
III. Sufficiency of the Evidence
The defendant's third, fourth, and fifth issues involve challenges to the sufficiency of the evidence. In considering these issues, we apply the familiar rule th
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