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Baird v. State6/28/2002
ntends that Harper should not have been allowed to testify about Joyce Lamastus's state of mind. Additionally, Baird contends that the trial court should not have allowed Joy Morman to testify as to information given in a complaint by Ricky Lamastus.
Harper testified that she spoke to Joyce Lamastus on Thursday, October 1, 1998, the day before the Lamastuses were last seen alive. When the prosecutor first attempted to elicit this testimony, Baird's trial counsel objected, and the trial court excused the jury. The prosecutor, by questioning Harper, explained what he expected the evidence to show and argued that the testimony was admissible under the excited-utterance exception to the hearsay rule. The trial judge overruled Baird's objection and brought the jury back to the jury box. Harper testified that Joyce had told her that Baird "had come to the [Lamastuses's] house, waving a gun." (R. 233.)
Morman testified that she was the court clerk for the City of Fultondale in October 1998. Outside of the presence of the jury, the prosecutor proffered what he intended to question Morman about, and Baird's trial counsel objected on hearsay grounds. The prosecutor argued that the evidence was admissible as res gestae, i.e., part of a continuous act or occurrence with the murders. The trial judge overruled Baird's objection and brought the jury back to the jury box. Morman identified State's exhibit 87 as a complaint filed by Ricky Lamastus on October 2, 1998, "stating that Mr. Baird had communicated with him by phone that he was going -- going to kill he and his wife, and he wanted to try to take measures for that not to happen; that somebody be notified of it." (R. 476.) She identified State's Exhibit 88 as, "The deposition that Mr. Lamastus completed that accompanies the complaint. This is something that the complainant fills out in his own handwriting, telling the magistrate what happened." (R. 476.) Ricky Lamastus was under oath when he gave the "deposition." Morman testified that: "Mr. Lamastus wrote on the deposition, speaking of Mr. Baird, 'He called several times, threatening my life, as well as my wife's, if we didn't drop charges. He pulled a .357 magnum and said he would kill me. He admitted stealing the $4000 and property.'" (R. 477.)
"It is well settled that '"a determination of admissibility of evidence rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of discretion."' State v. Mason, 675 So. 2d 1, 3 (Ala.Crim.App. 1993)(quoting Jennings v. State, 513 So. 2d 91, 95 (Ala.Crim.App. 1987)). Charles W. Gamble, McElroy's Alabama Evidence § 21.01(6)(5th ed. 1996) provides:
"'Whether evidence is to be excluded ... lies within the sound discretion of the trial judge ... This is where such power should lie because, unless some discretion is vested in the trial judge, every ruling upon the admissibility of a particular fact, of a kind above-mentioned, becomes a law unto itself. If any particular rule of evidence runs into numerous borderline cases, we must either give the trial court some discretion in applying it or admit that the rule is not workable at all.'" Stevenson v. State, 794 So. 2d 453, 456 (Ala. Crim. App. 2001).
Rule 801(c), Ala. R. Evid., defines hearsay as, "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." Hearsay is not admissible unless it falls under an exception to the hearsay rule.
Rule 803, Ala. R. Evid., provides, in relevant part:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witnes
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