The Trial of Kyle Gilley

Appellate Review of Hearsay Issues:

The Tennessee Supreme Court continues to insist that a trial judge's hearsay rulings will be affirmed absent an abuse of discretion. See Pylant v. State, 263 S.W.3d 854, 870 (Tenn. 2008), collecting cases. But Tennessee Court of Criminal Appeals

Judge Curwood Witt disagrees, and I agree with his disagreement.

Step one is determining whether the extrajudicial statement is offered to prove the truth of the matter asserted. If so, it's hearsay; if not, it's not hearsay. The judge has no discretion.

If the statement is hearsay, step two is determining whether it fits an exception to the exclusionary rule. Tennessee has 26 exceptions in Rules 803 and 804, plus a few statutory exceptions (some of the latter of dubious constitutionality). The judge does decide facts in applying some of those exceptions. For example, the dying declaration exception requires the foundation fact that the declarant believed death was imminent.

Another exception that requires judicial fact finding is the excited utterance exception in Rule 803(2). "The following are not excluded by the hearsay rule: ... a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Judge Witt analyzed this exception in State v. David Kyle Gilley, 297 S.W.3d 739 (Tenn. Crim. App., Aug. 13, 2008), perm. app. denied Feb. 22, 2009.

Kyle Gilley and Laura Salmon dated at Oakland High School in Murfreesboro and continued when Laura graduated and enrolled in Middle Tennessee State University. She tried to end their relationship; Gilley reacted violently. On May 31, 1984, Laura's body was found in a field near the high school, brutally beaten with rocks.

In 2000 the cold case was reinvestigated, new evidence was collected, and Gilley was brought from Florida to Rutherford County for trial from July 26 through Aug. 3, 2006. He was convicted of premeditated first degree murder and sentenced to life in prison.

Part of the abundant proof of Gilley's guilt was Mary Lester's testimony about Laura Salmon's excited utterances. Laura and Mary were participating in a flag corps practice at MTSU. Gilley drove up and down an adjacent street for over an hour. Laura told Ms. Lester that:

  1. "He keeps doing this!"
  2. "He's following me!" and
  3. "I don't want anything to do with him!"

The trial and appellate courts held that the drive-bys constituted a startling event, the utterances were directly related to the event, and the declarant was under stress of excitement caused by the event. Those holdings were eminently correct.
Perhaps the Supreme Court will reexamine its scope of review jurisprudence. Time will tell.


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.