concurring in result.
I fully concur with Section II of the majority opinion but disagree with its conclusion in Section I that the witness's testimony concerning the victim's threat to kill the defendant was inadmissible hearsay. I believe the testimony, when taken in context, was not hearsay and that the trial court erred in striking it from the record. However, this conclusion should not result in reversal in light of the fact that defendant has failed to show how he was harmed by the trial court's ruling.
Undoubtedly, only extra-judicial statements that are offered to prove the truth of the facts asserted by the declarant are hearsay. Dunaway v. State, (1982) Ind., 440 N.E.2d 682; Trustees of Ind. Univ. v. Williams, (1969) 252 Ind. 624, 251 N.E.2d 489. Proof of out-of-court utterances may be made for an almost infinite variety of other purposes which do not depend upon the veracity of the out-of-court declarant. Morse v. State, (1980) Ind., 413 N.E.2d 885, and cases cited therein. An example directly applicable to the instant case is wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance. It is obvious here that no assertive or testimonial use is sought to be made of the utterance, and it is therefore admissible, so far as the hearsay rule is concerned. VI J. Wigmore, Evidence § 1789 (Chadbourn rev. 1976); C. McCormick, Evidence § 249 (2d ed. 1972).
Here, Land testified that on the day of the shooting she was looking for the defendant to warn him that the victim, Mosley, was drunk and was "going to come and get [him]." After finally locating the defendant, Land told him to "get out of town because Lewis [Mosley] is in town and he's going to get you. He said he was going to kill you." (Our emphasis.) The trial court ruled and the majority of this Court now agrees that Land's last statement constitutes inadmissible hearsay because it is based on what Mosley, an out-of-court de-clarant, had. said. I believe this conclusion is erroneous because although Land's testimony contains an out-of-court declaration, it was not offered to prove the truth of the matter asserted-that Mosley actually threatened to kill the defendant. Instead, it was offered to show that defendant believed Mosley had threatened his life and is therefore relevant to the reasonableness of defendant's apprehension of danger when he later confronted Mosley.
Nevertheless, I do not believe the trial court's exclusion of Land's testimony constitutes reversible error. Even if the jury was allowed to consider Land's testimony in total, the evidence would still be insufficient to support defendant's claim of self-defense as a matter of law. As in Brumfield v. State, (1982) Ind., 442 N.E.2d 978, the defendant here shot his victim several times and the record shows that the victim did not have a gun on his person at the time of the shooting.
DeBRULER, J., concurs.