         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 16, 2002 Session

                    STATE OF TENNESSEE v. WANDA HINSON

                    Direct Appeal from the Circuit Court for Lewis County
                            No. 6023    Timothy L. Easter, Judge



                  No. M2000-02762-CCA-R3-CD - Filed September 27, 2002


DAVID H. WELLES, J., dissenting.


       I am unable to agree that the trial court’s error in admitting the victim’s hearsay statement
is harmless error. I believe the error requires reversal of the conviction, and I therefore dissent.

        The victim in this case clearly died a violent death. He sustained two separate fatal injuries.
The medical examiner testified that his scull had been “bashed in” such that his brains were coming
out of the hole in the scull. The witness testified that the wound could have been made by “any firm,
hard object,” such as a lead pipe, a baseball bat, a pool cue, or a steam iron. In addition, the medical
examiner testified that the victim’s throat and neck had been cut multiple times, “enough injury to
the neck to completely transect or cut in two the trachea or the windpipe.”

        The victim’s sister was allowed to testify that she talked to the victim a short time before he
was killed. She stated that the victim seemed upset or fearful. The witness said she asked the victim
what was wrong and “[h]e said Wanda was there.” The implication is that this conversation took
place very shortly before the killing. I believe the trial judge’s “limiting” instruction only amplified
the error: he instructed the jury that the statement was admitted only to establish the Defendant’s
presence near the time of the “murder.”

        The Defendant was on trial for first degree murder. The identity of the perpetrator was the
primary factual issue. The condition of the body and the cause of death indicate at least an
intentional killing. The jury convicted the Defendant of the “least serious” lesser included offense
of criminally negligent homicide. The verdict suggests that the jury did not find the State’s proof
to be particularly strong.

       Based upon my review of the evidence, I must conclude that the error in admitting the
hearsay statement affirmatively appears to have affected the result of the trial. I would therefore
reverse the Defendant’s convictions for criminally negligent homicide and especially aggravated
robbery, and remand for a new trial.
      ___________________________________
      DAVID H. WELLES, JUDGE




-2-
