         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

    STATE OF TENNESSEE v. MATRIN BECTON & ANTONIO SYKES

                                Criminal Court for Shelby County
                                        No. 98-02267-70



                     No. W1999-00581-CCA-R3-CD - Filed June 19, 2002



David G. Hayes, J., separate concurring.

       I join with the majority on all issues with the exception of their holding that the hearsay
statement of the victim was admissible. The majority finds that the deceased victim's statement "that
he was tired of the lifestyle, being in that environment, and he didn't want to be a part of it anymore"
was admissible to establish the victim's existing state of mind.

        First, I find the victim's statement is not relevant as the statement has no bearing upon any
factual issue that was "of consequence to the determination of the action." Tenn. R. Evid. 401. The
statement asserts no proof of intent, plan, motive, or mental feeling relevant to the homicide. See
Tenn. R. Evid. 803(3). Moreover, as the opinion states, "the assault on the victim was a form of
punishment for actions taken detrimental to the gang." Clearly, the motive for the murder was
disciplinary in nature and had nothing to do with the victim's dissatisfaction with the gang lifestyle.
Although I find admission of the hearsay statement error, I find the error harmless. Tenn. R. Crim.
P. 52(a).



                                                       ___________________________________
                                                       David G. Hayes, Judge
