# FILED
July 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9708-CC-00366 Appellee, ) ) RUTHERFORD COUNTY VS. ) ) HON. J.S. DANIEL, Y'VETTE VITINA VADEN, ) JUDGE ) Appellant. ) (1st Degree Murder, Aggra va ted ) Assault, Reckl ess Endang erment )

FOR THE APPELLANT : JOHN P. DRIVER 120 East Main Street NationsBank Building, Thi rd Floor P.O. Box 1336 Murfreesboro, TN 37133-1336 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DEBORAH A

. TULLIS Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM C. WHITESELL, JR. District Attorney General 303 Rutherfo rd County Jud. Bld g. Murfreesboro, TN 37130

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 The defendant’ s name was also spe lled “Y’vetta” i

n various pleading

s. 2 OPINION
The defendant, Y’vette Vitina Vade n, 1 appeals as of right her conv ictions for first degree murder, ag gravated assault, and r eckless endangerment. On appeal, she contends the trial court erred by (1) ad mitting the taped statement of the victim identifying

the defendant as the person who shot him, and (2) admitting photographs of the dec eased victim. We find no error and AFFIR M the judgment of the trial court.

FACTS
On July 22 1995, Gregor y Mobley, the vi ctim, 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 depu ty could arrive at the scene, the defendant arrived armed with a pistol and approached Mobley in t he store. The def endant d emande d money f rom Moble y.
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 l eft the store. As Mobley followed the defendant, the defendant turned and shot Mobley several times through the open door of the store. A store custom er was also wounded in the left ankle by a ricoche ting 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 i dentified the defendant as the person w ho shot him. The victim died shortly thereafter.3 The defendant returned to her hom e, called 9-1-1, and identified herself as the person who shot the v ictim. She was subseq uently arrested.

VICTIM’S DYING DEC LARA TION

The defendant contends the recorded statement of the victim identifying her as the perpetra tor was imp roperly ad mitted h earsay evid ence. Sp ecifica lly, she contends the State failed to prove the def endant had knowledge of his impending death when the stat ement was made. The state argues the statement was properly admitted as a dying decl aration.
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 hi s or her death was imminent ; and (3) made concerning the cause or circumstances of what the declarant believ ed to be impending death. Tenn. R. Evid. 804(b) (2). Unquestionably , the statement was used in t he homicide trial of the declarant and concerned the cause or ci rcumstances of the declarant’s death. Therefore, the o nly issue for determinati on 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-CR00029, Davidson County ( Tenn. Crim. App. filed July 31, 1997, at Nashville)

. The character of the victim’ s wounds may show c onsciousness 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).4 In the instant case, the victim had been shot twice in the abdomen, once in the arm, and in the back of the thi gh. A registered nur se who witnessed the shooting testified she told the paramedics to work q uickly as she believ ed the victim could die soon from l oss of blood. The paramedics gav e 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. Evi d. 804(b)(2). The evidenc e does not preponderate against the trial cour

t’s admission of the victi m’s statement as a dying declaration.
Furthermore, any possibl e error concerning admi ssion of the dying declaration was clear

ly harmless. Tenn. R. App.P. 36(b). Numerous other witnesses identified the defendant as the person who shot the v ictim. The defendant herself called 9-1-1 and adm itted to shooting the victim. We are satisfied the result woul d 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 c ourt improperly admitted photographs of the victim. The photographs were taken j ust prior to the autopsy. The defendant argues the photographs were irrelevant, inflam matory, and their probative value w

as far outweighed by th eir prejudicial effect.
The admissibility of photogr aphs lies within the s

ound discretion of the trial court whose ruling

will not be overt urned on appeal except upon a cl ear showing5

of an abuse of discretion. State v. Banks , 564 S.W.2d 947, 94 9 (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). Nev ertheless, the photographs must be relev ant to an issue at trial w ith its probative v

alue 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 Collin s , C.C.A. No. 03C01-9704-CR-00143, Hamilton County ( Tenn. Crim. App. filed March 3, 1998, at Knoxville).
We must, therefo re, 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 premedi tated nature of the crime and rebut th e theory of self-defense.
In light of the evidence pr eviously introduced , the admission of the photographs of the victim pr esents a close question. Arguably, this informati on could have been properly relayed to the jury

with the autopsy diag rams rather than the photographs. How ever, we note the tri al 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 p rejudicial , and the tri al court di d not abuse it s discreti on admitting

them.
Furthermore, if the photographs were improperly a

dmitted, 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 Collin s , supra .6 This issue is without merit.

For the reasons stated abov e, we AFFIRM the judg ment of the trial court.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

________________________________ CURWOOD WITT, JUDGE

________________________________ LEE MOORE, SPECIAL JUDGE