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State v. Hawkins11/4/2005
The Saylor court went on to say:
We think that Butler controls the issue in the case before us. Ruthie Hall's testimony consisted of an uncommunicated threat made by the victim, John Case, towards Saylor prior to the victim's death. Under Butler, such testimony is admissible as an exception to the rule excluding hearsay statements as an indication of the victim's state of mind, and it is relevant to establish the victim's status as the aggressor. [Butler], 626 S.W.2d at 11.
Id.
We conclude that Saylor is distinguishable from the instant case. First, we note that the threat to kill Saylor was made by the victim shortly before his death. In the instant case, the victim's comments came from nine telephone calls from the victim to his sister, beginning on February 4 and ending on February 15, 2002. The victim was killed on April 21, 2002. In four of the telephone calls, including the final one, which lasted ten minutes, the appellant was not mentioned. Further, there were only a few references to the appellant during the approximately eighty minutes of telephone conversations. The victim's conversations to his sister, consisted of comments such as he did not know if he wanted to be "locked up" with the appellant; he "ain't even heard from [the appellant]" who "evidently . . . just ain't gonna help "; "Cock suckin' Willie . . . I ain't, fuck with him no more, man, ever. I'm writin' him off"; and "Willie done this shit to me, just like he stuck me up to Bristol." The victim's remarks about the appellant did not amount to threats of violence, instead consisting of comments that he was upset that the appellant had him thrown in jail, he did not know if he wanted to be incarcerated with the appellant, and he wanted nothing more to do with the appellant. In their entirety, the calls appear to consist mostly of complaints by the victim about his situation and his asking for news of relatives and his home. In fact, as the trial court noted in excluding the tapes, " ost of the phone calls showed that he loved his dog." Thus, taking the statements of the victim in context, we conclude that the trial court did not abuse its discretion in excluding the tapes. We note that, as the appellant himself concedes, proof of the victim's displeasure with the appellant was introduced through other witnesses. Therefore, even if the trial court erred in excluding the calls, such error was harmless. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).
2. Statement by Witness's Husband
The appellant next argues that the trial court erred in not allowing Chasity Gentry to be cross-examined about her husband's statement to the police, which statement was made in her presence. Mrs. Gentry testified that, on their way home from the victim's residence, they stopped at a gas station in Johnson City where she saw the appellant throw something in a dumpster and cover it up. In his statement to the police on April 22, 2002, Mr. Gentry said that they did not stop anywhere after they left the camper, taking the appellant directly to his sister's house. Mr. Gentry did not testify at trial. Therefore, during the cross-examination of Chasity Gentry, the appellant sought to question her as to her husband's April 22, 2002, statement, saying: "And you sat there and listened as he told the police about it and your husband said that."
The State objected and argued that Mrs. Gentry could not testify as to what Mr. Gentry said because such testimony would be hearsay. The appellant responded that Mrs. Gentry had adopted the April 22 statement by signing it as a witness. The trial court disagreed, stating that "she witnessed the statement, it doesn't mean she agreed it was true." The appellant
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