         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 16, 2005

                  STATE OF TENNESSEE v. ROBERT K. WARD

                        Appeal from the Circuit Court for Sevier County
                            No. 9429       Rex Henry Ogle, Judge



                   No. E2004-01665-CCA-R3-CD - Filed December 29, 2005



JOSEPH M. TIPTON , J., concurring.

        I concur in the results and most of the reasoning in the majority opinion. I disagree, though,
with its view of the trial court’s instructing the jury regarding an excited utterance. The hearsay rule
of exclusion is mainly based upon concerns for the reliability of the asserted fact by an out-of-court
declarant. See State v. Henry, 33 S.W.3d 797, 803 (Tenn. 2000). An excited utterance is an
exception to the rule of exclusion because we believe it occurs under circumstances rendering it
sufficiently reliable to be admitted into evidence. See State v. Gordon, 952 S.W.2d 817, 819-20
(Tenn. 1997). However, a trial court should not explain this to a jury because it is truly a comment
relevant to the reliability of the evidence.

         The trial court in the present case, though, stressed to the jury that they were to determine
whether the statement was made to the witness and whether it was true. Given the defendant’s
failure to object, I believe the full instruction does not rise to the level of plain error.


                                                       ____________________________________
                                                       JOSEPH M. TIPTON, JUDGE
