A statement of the declarant's then existing emotions or state of mind has historically been admissible as an exception to the hearsay evidence rule. See McElroy's Alabama Evidence, supra, § 261.03(2) and (5); Ex parte Whisenhant, 555 So.2d 235 (Ala. 1989) (statement of fear, including statement as to the cause of the fear, held admissible); and Jackson v. State, 629 So.2d 748 (Ala.Crim.App. 1993) (same). Because the witnesses' testimony concerned Tressa Patterson's statement that she was afraid of Dunaway and feared for her life, it fell within a hearsay exception that has been recognized by this Court.
The trial court instructed the jury not to read anything into its rulings on the parties' objections and to disregard all of the statements and objections made by the attorneys. Defense counsel then continued his cross-examination. This court addressed a similar situation in Jackson v. State, 629 So.2d 748 (Ala.Crim.App. 1993). After the trial court refused to allow the contents of Jackson's self-serving statement into evidence, defense counsel referred to the statement in closing argument.
In Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975), the Court held that the statement, "No one took the stand to deny it" was a comment on the defendant's failure to testify. Further, in Jackson v. State, 629 So.2d 748 (Ala.Cr.App. 1993), this court held that the prosecutor's statement, "Now, if he had wanted to testify, that would be fine, but he did not," was a direct comment on the defendant's failure to testify. The comments in this case are similar to the comments made in the cases cited above, which were held to be comments on the defendant's failure to testify.
" 'The trial judge is in the best position to determine whether the prejudicial effects of an improper remark can be eradicated by instructions to the jury, and his determination should be accorded great deference.' " Jackson v. State, 629 So.2d 748 (Ala.Cr.App. 1993), quoting Hannah v. State, 518 So.2d 182, 185 (Ala.Cr.App. 1987). Also, "[i]n determining whether the curative instructions have eradicated the prejudice caused by the improper remark, each case must be considered on its own facts and circumstances."
Had the State laid the proper predicate and established that the victim's statements to the officers were made under the stress of nervous excitement and fear and not upon reflection, those statements could have been properly admitted to establish Baker's intent to terrorize the victim. See Jackson v. State, 629 So.2d 748, 756-57 (Ala.Crim.App. 1993); Ex parte Whisenhant, 555 So.2d 235 (Ala. 1989); United States v. Rivera, 43 F.3d 1291 (9th Cir. 1995) (statements made by rape victim were properly admitted under Rule 803(2), Fed.R.Evid., despite time lapse of 30 minutes between rape and statements because the victim was clearly still under stress or excitement of the rape); Dawson v. Commonwealth, 867 S.W.2d 493 (Ky.Ct.App. 1993) (holding admissible victim's statement to officer immediately after incident of domestic violence and holding inadmissible victim's statement to another officer at a later time because of lack of spontaneity). Thus, if the State can establish that the victim's statements to Officers Riley, Smith, and Martin about the acts of domestic violence against her by Baker were excited utterances, the evidence may be admissible over a hearsay objection as evidence of intent to terrorize under Rule 404(b), Ala. R. Evid.
482 So.2d at 1264. See also Ex parte Burgess, 827 So.2d 193 (Ala. 2000), and Jackson v. State, 629 So.2d 748 (Ala.Crim.App. 1993). Although the prosecutor's comment was clearly improper, that does not end our analysis.
This Court has also ruled that a statement demonstrating a declarant's fear is admissible under the state-of-mind exception. See Jackson v. State, 629 So.2d 748 (Ala.Crim.App. 1993); Moore v. State, 697 So.2d 800, 804 (Ala.Crim.App. 1997). The trial court properly admitted the testimony of Davidson as an exception to the exclusions of the hearsay rule.
Both this Court and the Alabama Supreme Court have recognized that a statement demonstrating the declarant's fear is admissible under the state-of-mind exception. See Ex parte Dunaway, 746 So.2d 1042, 1048 (Ala. 1999) (witness's testimony concerning victim's statement of fear admissible), cert. denied, 529 U.S. 1089, 120 S.Ct. 1724, 146 L.Ed.2d 645 (2000); Ex parte Whisenhant, 555 So.2d 235 (Ala. 1989) (statement of fear, including statement as to the cause of the fear, held to be admissible), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990); Jackson v. State, 629 So.2d 748 (Ala.Crim.App. 1993) (same). Here, Martin had attempted to establish that he and the victim had had a good marital relationship.
In Ex parte Dunaway, the Alabama Supreme Court, in its majority opinion determined that the testimony of a State's witness during sentencing — that the victim stated that the defendant had previously threatened to kill her and the other victim — was held admissible as "[a] statement of the declarant's then existing emotions or state of mind [which] has historically been admissible as an exception to the hearsay evidence rule. See McElroy's Alabama Evidence, supra, § 261.03(2) and (5); Ex parte Whisenhant, 555 So.2d 235 (Ala. 1989) (statement of fear, including statement as to the cause of the fear, held admissible); and Jackson v. State, 629 So.2d 748 (Ala.Crim.App. 1993) (same)." 746 So.2d. at 1048.
See Bailey v. State, 717 So.2d 3, 5 (Ala.Cr.App. 1997) (although the prosecutor "may not have intended to comment on the appellant's failure to testify, we [this Court] are of the opinion that he did", and the trial court's "good faith attempt to cure the effects of the prosecutor's remarks . . . fell short of the requisite standards"). See also Jackson v. State, 629 So.2d 748, 753 (Ala.Cr.App. 1993); State v. Gotcher, 52 Wn. App. 350, 759 P.2d 1216, 1219 (1988) (the Prosecutor's misstatement of the law required a reversal where the trial court "had an opportunity to prevent the confusion when defense counsel objected to the State's closing argument"; however, the trial court "failed to cure the misstatement by overruling the objection and by not clarifying the law to the jury" 759 P.2d at 1219). "In less extreme situations, misconduct may be rectified through the use of curative jury instructions . . . and the trial court may also instruct the prosecutor to retract an offending statement before the jury."