          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



                                         4
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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