State v. Y'vette v. Vaden ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
July 20, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9708-CC-00366
Appellee, )
) RUTHERFORD COUNTY
VS. )
) HON. J.S. DANIEL,
Y'VETTE VITINA VADEN, ) JUDGE
)
Appellant. ) (1st Degree Murder, Aggravated
) Assault, Reckless Endangerment)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN P. DRIVER JOHN KNOX WALKUP
120 East Main Street Attorney General and Reporter
NationsBank Building, Third Floor
P.O. Box 1336 DEBORAH A. TULLIS
Murfreesboro, TN 37133-1336 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
303 Rutherford County Jud. Bldg.
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Y’vette Vitina Vaden,1 appeals as of right her convictions
for first degree murder, aggravated assault, and reckless endangerment. On
appeal, she contends the trial court erred by (1) admitting the taped statement of
the victim identifying the defendant as the person who shot him, and (2)
admitting photographs of the deceased victim. We find no error and AFFIRM the
judgment of the trial court.
FACTS
On July 22 1995, Gregory Mobley, the victim, called 9-1-1 from a pay
phone outside a “Kountry Korner Market” seeking to have the defendant, his
girlfriend, arrested for destroying his clothes. Before a sheriff’s deputy could
arrive at the scene, the defendant arrived armed with a pistol and approached
Mobley in the store. The defendant demanded money from Mobley.
Mobley stated he had no money and told the defendant to go ahead and
shoot him. The defendant stated she was not going to shoot him in the store
where people were working. She also stated, “I’m going to kill you.” A store
employee told the two to “take it outside,” and the defendant left the store. As
Mobley followed the defendant, the defendant turned and shot Mobley several
times through the open door of the store. A store customer was also wounded in
the left ankle by a ricocheting bullet.
While in an ambulance en route to the hospital, Lieutenant Randy Faulk
of the Rutherford County Sheriff’s Department elicited a taped statement from
Mobley. The victim identified the defendant as the person who shot him. The
victim died shortly thereafter.
1
The defendant’s name was also spelled “Y’vetta” in various pleadings.
2
The defendant returned to her home, called 9-1-1, and identified herself
as the person who shot the victim. She was subsequently arrested.
VICTIM’S DYING DECLARATION
The defendant contends the recorded statement of the victim identifying
her as the perpetrator was improperly admitted hearsay evidence. Specifically,
she contends the State failed to prove the defendant had knowledge of his
impending death when the statement was made. The state argues the
statement was properly admitted as a dying declaration.
For a hearsay statement to be admissible as a dying declaration, the
statement must be (1) used in the homicide trial of the declarant; (2) made while
the declarant believed his or her death was imminent; and (3) made concerning
the cause or circumstances of what the declarant believed to be impending
death. Tenn. R. Evid. 804(b)(2). Unquestionably, the statement was used in the
homicide trial of the declarant and concerned the cause or circumstances of the
declarant’s death. Therefore, the only issue for determination is whether the
declarant’s statement was made while he believed that death was imminent.
The victim is not required to explicitly state that he or she believes death is
imminent in order for the statements to be admissible under Tenn. R. Evid.
804(b)(2). See State v. Maruja Paquita Coleman, C.C.A. No. 01C01-9401-CR-
00029, Davidson County (Tenn. Crim. App. filed July 31, 1997, at Nashville).
The character of the victim’s wounds may show consciousness of impending
death. Hawkins v. State, 417 S.W.2d 774, 777 (Tenn. 1967); State v. Keels, 753
S.W.2d 140, 143 (Tenn. Crim. App. 1988). See also Neil P. Cohen et al.,
Tennessee Law of Evidence, § 804(b)(2).1 (3d ed. 1995).
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In the instant case, the victim had been shot twice in the abdomen, once
in the arm, and in the back of the thigh. A registered nurse who witnessed the
shooting testified she told the paramedics to work quickly as she believed the
victim could die soon from loss of blood. The paramedics gave Mobley oxygen,
began to monitor his heart rate, and placed two (2) intravenous tubes into his
arms while en route to the hospital.
Based upon these facts, the trial court concluded the statement met the
requirements of Tenn. R. Evid. 804(b)(2). The evidence does not preponderate
against the trial court’s admission of the victim’s statement as a dying
declaration.
Furthermore, any possible error concerning admission of the dying
declaration was clearly harmless. Tenn. R. App. P. 36(b). Numerous other
witnesses identified the defendant as the person who shot the victim. The
defendant herself called 9-1-1 and admitted to shooting the victim. We are
satisfied the result would have been the same without the admission of the dying
declaration.
This issue is without merit.
ADMISSION OF PHOTOGRAPHS
The defendant further contends the trial court improperly admitted
photographs of the victim. The photographs were taken just prior to the autopsy.
The defendant argues the photographs were irrelevant, inflammatory, and their
probative value was far outweighed by their prejudicial effect.
The admissibility of photographs lies within the sound discretion of the trial
court whose ruling will not be overturned on appeal except upon a clear showing
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of an abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978);
see also State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); State v.
Bordis, 905 S.W.2d 214, 226 (Tenn. Crim. App. 1995). Nevertheless, the
photographs must be relevant to an issue at trial with its probative value
outweighing any prejudicial effect that it may have upon the trier of fact. State v.
Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993); State v. Jennifer Collins,
C.C.A. No. 03C01-9704-CR-00143, Hamilton County (Tenn. Crim. App. filed
March 3, 1998, at Knoxville).
We must, therefore, first determine whether the photographs were
relevant. Relevant evidence is evidence “having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R.
Evid. 401. The photographs were used by the medical examiner to explain his
testimony to the jury. The defensive wounds shown in the photographs were
also used to show the premeditated nature of the crime and rebut the theory of
self-defense.
In light of the evidence previously introduced, the admission of the
photographs of the victim presents a close question. Arguably, this information
could have been properly relayed to the jury with the autopsy diagrams rather
than the photographs. However, we note the trial court excluded one
photograph as being overly graphic. In addition, the admitted photographs were
not bloody, gruesome, or inflammatory. We find the photographs were not
overly prejudicial, and the trial court did not abuse its discretion admitting them.
Furthermore, if the photographs were improperly admitted, their admission
constituted harmless error. Tenn. R. App. P. 36(b). They certainly were not of
the prejudicial magnitude of those utilized in State v. Jennifer Collins, supra.
5
This issue is without merit.
For the reasons stated above, we AFFIRM the judgment of the trial court.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
________________________________
CURWOOD WITT, JUDGE
________________________________
LEE MOORE, SPECIAL JUDGE
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