### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Septembe r 11, 2001 S ession

STATE OF TENNESSEE v. RONALD EUGENE RI CKMAN AND

WILLIAM EDWARD G ROSECLOSE
Direct Appeal from the Criminal Court for Shelby County No. B-59341 James C. Beasley, Jr., Judge

No. W1999-01744-CCA-R3-CD - Filed May 17, 2002

The appellants, Ronald Eugene Rickman and William Edward Groseclose, appeal their convictions by a jury in the Shelby County Criminal Court of, respectively, first degree m urder and being an accessory before the fact to first degree murde r. In this ap peal, appe llant Groseclose presents the following issues for our consideration: (1) whether the trial court e rred in failing t o sever his trial from that of co-defendant Rickman; (2) whether the trial court erred in admitting at trial the former testimony of Barton WayneMount; (3) whether the trial court er red in excluding testimony by Gary King; and (4) whether the evidence adduc ed at trial is sufficient to support the jury’s verdict of guilt. Appellant Rickman solely challenges the introduction at trial of Mount’s former testimony. Following a careful review of the record and the parties’ briefs, we re mand this case to the trial court for correction of the

judgments to refle ct t

he appellants’ receipt of credit for time serve d in the Tenness ee Depa

rtment of Correct ion prior to trial. W

e affir m the judgme

nts in all ot

her res pects.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Remanded for Correc tion and othe rwise Af

firmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined.
Joseph S. Ozment (at trial and on appeal) and Steffen Schre iner (at trial), Memphis, Tennessee, for the appellant, Ronald Eugene Rickman.

Gerald Skahan (at trial and on appeal) an d Paula Skahan (at trial), Memphis, Tennessee, for the appellant, William Edward Groseclose.

Paul G. Summers , Attorne y Gener al and Re

porter; J . R oss Dyer , Assistan t Attorne y Gener al; William L. Gibbons, District Attorney General; and Edgar A. Peterson, IV, a nd J. Robert Carter, Jr., Assistant District Attorneys General, for the appellee, State of Te nnessee.-2- OPINION

I. Procedural Backgr

ound On September

30, 1977, a Shelby County GrandJury indicted appe llants Gr oseclose and Rickman and co-defendants Barton Wayne Mount and Phillip Michael Britt for one count of first degree murder a nd furthe r indicte d Grosec lose and Mount for one count of being accessories before the fact to first degree murder. The two- count indi ctment ar ose from the infamous murderfor-hire of Grose close’s wife, De borah Lee Grose close, in

Memphis, Tennessee on June 29, 1977. Between February 18 and March 3, 1978, Groseclose, Rickman, and Britt were tried jointly by a jury i n bifurcated proceedings in which the State ultimately sought the death penalty. State v. Grosec lose , 615 S.W.2d 142, 144 (Tenn. 1981). The guilt/innocence phase of the trial resultedin the defendants’ convictions of first degree murder

. Id. At the conclusion of the sentencing phase, the jury imposed sentences of death upon Groseclose and Rickman and granted Britt a sentence of life imprisonment in the Tennessee Department of Correction. Id. Subsequently, on November 27, 1978, co-defendant Mount pled guilty to second degree murder in return for a se ntence of ten years incarceration

in the Tennessee Department of Correction. Rickman v. Dutton
, 864 F. Supp. 686, 696 (M. D. Tenn. 1994).

Fo l lowing their convictions of first degree murder and the imposition of sentence s of dea th, Gros eclose and Rickman embarked upon a lengthy series of a ppeals and collateral proceedings culminating in the r eversa ls of thei r convictions and sentences by the United States District Court for the Middle District of Tennessee, see Grosec lose v. Bell , 895 F. Supp. 935 (M. D. Tenn. 1995); Rickman , 864 F. Supp . at 686; Rickman v. Dutton , 854 F. Supp. 1305 (M. D. Tenn. 1994) , which reversals were affir med by the Unite d States Cou rt of Appe als for the Si xth Circuit, Grosec lose v. Bell , 130 F.3d 11 61 (6th Cir. 1997), cert. denied , 523 U.S. 1132, 1 18 S. Ct . 1826 (1998); Rickman v. Bell , 131 F.3d 11 50 (6th Cir. 1997), cert. denied , 523 U.S. 1133, 118 S. Ct. 1827 (1998). Specifically, the Sixth Circuit appellate court approved the district court’s conclusion that bothGroseclose and Rickman had received inef fective assistance of coun sel amounting to a violat ion of the Sixth a

nd Fourtee

nth Amend

ments tothe United States Constitution. Grosec lose
, 130 F.3d at 1162; Rickman , 131 F.3d a t 1156. The

United Sta

tes Supre me Court denied the State’s petition for writ of certiorari on May 18, 1998.

Approxima

tely eight months later, Groseclose and Rickman were once a gain tried jointlyby a jury in bifurcat ed proceedings in which the State sought their convictions and the imposition of sente

nces of d eath pur suant tothe 1977 indictment. A jury was impaneled and sworn and the guilt/innocence phase of the trial commenced on Februar y 1, 199 9, result

ing on February 12 in Rickman ’s conviction of fir st degre e murder and Gros eclo se’s con viction of being an accessory before the fact to first degree murder. Following the sentenc ing phase

of the tri al, however, the jury declinedto sentence the appellants to death, instead granting them terms of life imprisonment in the Tennessee Department of Correction.

II. Factu al Background-3- At the time of

Debora h Grosec lose’s mur

der in the summer of 1977, she and Grosec lose had bee

n marrie d for app

roxima tel y two or three years and resided in the Frayser neighborhood of Memphis. Deborah was twenty-four yearsold and em ployed asa rece

ptionist in

a medical clinic. Groseclose was twenty-nine year s old and employed as a recruiter for the United States Navy. The Grose close s had one son named Nathan who was almost one year old. Additionally, Deborahhad a six-year-old daughter from a prior ma rriage named Tonya Foley, who was visiting her father in Mississippi. The Grosecloses had been experie ncing marital difficulties punctuatedby brief

separa tions. Acc ordingly, Debora h had sought ma

rriag e counseling and, indeed, met with her marriage counselor on the evening of

Tuesday, June 28, 1977, the day before her murde r. At the appellants’ trial, the State successfully posited to the jury that the Gr osecloses ’ marital difficul

ties in add ition to app ellant Gr

oseclose ’s status a s th e ben eficiary of several insurance policies on Debor

ah’s life motivated

him to h ire appe

llant Rick man and Ph

illip Micha

el Britt to murder his wife.

In support of

its theory , the State

present ed the te stimony of D oyle Scro ggins that , in 1975, he was employed by the Howard Vaughn Agenc y in Memphis and sold the Grosecloses an insurance policy on Deborah’s life amounting to $12,788 and naming Groseclose as the beneficiary. T he St ate also presented the testimony of James W. Perkins that, in 1975, he was an e mployee of StateFarm Insu

rance a nd sold to the Grose closes a n insuran ce polic y on Groseclo se’ s life amounting to $30,000 and naming Deborah as the beneficiary. No tably, a $20,000 “rider” on Deborah’s life

was attached to the pr incipal policy and named Groseclose as the benefic iary. Perkins further recalled that, ap

proximate

ly one month prior to Deborah’s murder, Groseclose c ontactedhim and asserted that the $30,000 insurance policy onGroseclose’s life had been written incorre ctly and was in fact intended to insure Deborah’s life, resulting in a $50 ,000 insurance policy on her life. Grosec lose asked Pe

rkins to a mend the p olicy ac cordingl y. Perkins , howeve

r, infor med Groseclose that he could not amend

the policy. Perkins explained: “Well, it’s a legal, binding contract between

an insurance company and the insured. And for something like that to happen, the insured just has to cancel and then r

epurcha se on a dif

ferent amount fo

r a diffe rent per son - - dif

ferent - - for like Mrs. Groseclose.” Perkins advised Groseclose against cancelling the curr ent policy, andGrosec lose ultimately agreed.

The Statealso presented a parade of five diff erent witnesses who testified that, prior to Deborah’ s murd er, Groseclose asked them if they would be willing to kill her for a fee or, alternatively, if they knew of anyone willing to do so. For example, John Shanks testified at trial that, in Nove mber 1976, Groseclose was both his Navy recruiter a nd his friend. During a conversation between Shanks and Groseclose at the Navy recruiting station, Grosec lose spoke about his wife and remarked to Shanks that “[w]e’ re arguing, you know, would you like to kill her. There’s some insurance mon ey involved i n it.” Shanks believed at that time that Groseclose was joking. Shanks observed that Groseclose “[w]as the kind of guy who joked a round a lot.”

Also, Alvi n Bevell

testifie d that he f

irst beca me acqua inted with

Grosec lose in

late 1975 or early 1976 when he drov e his friend, Jerry Cochran, to the Navy rec ruiting station. Grosec lose later

attempted to recruit Bevell into the Navy, but Bevell’s application was rejected due-4-

to his poor eyesight. Subsequently, in July or August 1976, Groseclose telep honed Beve ll and chattedwith him for a while before mentioning “something about [his wife] becoming a bitch” and inquiring whether

Bevell knew of anyone who would be willing to kill her. Bevell asserted at trial that, at the time of this telephone conversation, he did not believe that Gros eclos e was se riously contemplating killing his wife. One month late

r, howev er, Gro seclose

again telephonedand asked whether Bevell kne

w of anyo ne who wouldbe willing to kill his wife. On this occasion, Grosec lose sounded intoxicated.

Michael A. Blasco

similarly t

estifie d that he f irst beca me acqua inted with Grosec lose when the appellant recruited him into the Navy in Januar y 1975. Bla sco rema

ined in the

Navy unti l March 1977, at

which time he joined the Naval Reserve. In May 1977, he was liv

ing in Memphis and was enrolled as a student at Bailey Technical School. At that time, he a nd a girlfriend visited Groseclose’s home. Bec ause De borah wa s sick, Gr

oseclose and h is visitors remained in the driveway, where Groseclose showed Blasco a van tha t the appellant had recently purchased. During the visit, Groseclose jokingly asked Blasco whether he knew anybody that did “hit work.”

Jent F. Sawyer , II, tes tified tha t he too be came ac quainted with Gros eclose w

hen, in 1977, he unsuc cessfully attempt ed to enlist in the Navy. The Navy rejected his application due to

a “plate” that had been inserted in his head following a bicycle accident

that occurred when he was nine years old. Additionally, Sawyer had been voluntar ily incar cerate d in a mental institution for two and one-half or three

years. I n any eve nt, Sawye r recou nted at tr ial that, following his physical examination at the Navy recruiting station, Groseclose drove him hom e. During the drive, Grosec lose desc

ribed to Sa

wyer his marital di fficulti es. Additi onally, G roseclo se askedme if

I knew anyone that would, excuse me, kill his wife, and I said no. And he asked

me if I would find a

nyone, a nd I said I would pr obably not. And then he asked me if I would do it myself, and I said no. And that’s when I started getting veryunc omfortab le with the entire subject matter. Sawyer recalled, “I thou ght he wa s jokin g at first, b ut as the c onversa tion wore on, it def

initely b ecame more and more he was serious that he wanted his wife killed.” According to Saw yer , Groseclose mentioned collecting insurance proceeds in the event of his wife’s death.

Finall y, J erry Cochran testified that Groseclose was his Navy r ecruiter in 1975. Cochran served in the Navy for two years on active duty a nd fo r four

years in the Naval Reserve. He was disch arged f

rom activ e duty in 19 77 and, in March or

April1977, visited Grosec lose in Memphis. Cochran recalled, “Bill liked to joke around and tell stories and stuff and what haveyou, buthe just kind of casually asked me if I wanted to kill his wife.” Moreove r, appro ximate ly one month later, in M ay or June 1977, Cochran telephoned Groseclose, a nd, during the ensuing conversation, Groseclose asked Cochran for assistance in locating someone willing to kill Deborah. Groseclose spoke in a “regular, ca lm tone of voice.” Nevertheless, at that time, Cochran believed that Groseclose was joking. Cochran next visited Groseclose’s home on the da y o f D eborah’s funera l. During hisvisit, Cochran spoke with Groseclose privately and expressed his condolenc es for Deb orah’s m

urder. A lthough De

borah’smurdere

rs had not yet been apprehe nded, Gr oseclose-5-

remarked to Cochran, “It’s hard to kee p a straight

face when you know who did it.” Accord ing to Cochran, Groseclose was smiling.

The State add

itionally p

resente d the testi

mony of An

ne Marie Adams , a n ext-door neighbor of the Grosecloses in the summer of 1977. Adams related that Grosecl ose was surrep titiously record

ing telephone ca

lls to and f

rom the Gr

oseclose home immed

iately pr ior to Deborah’s death. In this re gard, Ad ams recalled that Groseclose visited her home in the summer of 1977 and asked if he could borrow a telephonic rec ording device “that my husband had made up for my father-in-law because his two brothers, we thought, was on drugs; and my father-in-law wanted to use it to see what was going on.” Groseclose informed Adams and her husband that he needed the device for his volunteer work as an auxiliary proba tion office

r with the Shelby

County Juve

nile Court. Adams testified:

He said that he was going to use it in a juvenile court case, and that he was going t o be up in the attic of the juvenile court, and that pe ople - - that as fa

r as othe r people knew, he

was going

to be in Kingspor t, but he wa sn’t going

to Kingspo

rt, he wa s goin g to be in the juvenile court attic. Upon receiving this explanation, Adams’ husband agreed to loan Groseclose the r ecording device.

Ad ams furth er recalled that, after obtaining the rec ording device, Groseclose was absent from home for three or four days. On seve ral occasions during Gr

oseclose ’s absence, Ada

ms observed a man whom she later

knew as Barton Mount going into the backyard of the Groseclose home. Becoming suspici ous, Adams and her husband decided to inform Deborah a bout the recording device. Moreover, upon spea king with D eborah, they acc ompanied her to inv estigate

a shed in the Grosecloses’ back yard a nd discovered the recording device inside. Adams’ husba nd “unhooked” the device, apparently from wires that extended from the wall of the shed. The Adamses then took the recording device home and, along with Debora h, listene d to one of

the tape s found in the device. They overheard a telephone conve rsation between Deborah’s daughter, Tonya , and her grandmother, Aline Wa

tts, in add ition to a telephone call to an automated service that reported the time of day.

Adams also related that she encountered the appellant on June 29, 1977, the day on which Deborah was murdered. Adams was standing in her front yard speaking with anothe r neighbor named Betty Rogers. At approximately 10:00 a.m. or 11:00 a.m., Groseclose approached Adams and Roger s. According to Adams, Groseclose was “very visibly shaken. He was crying.” Grosec lose informed

his neighb ors that D eborah’ s office had just c alled an d informe d him that she had never arrived at work that morni n g. Groseclose then inquired if either woman had seen D eborah. He rema

rked tha t a strang er had f

ollowed D eborah home from w ork the pr evio us day

. Grosec lose described the stranger’s vehicle as a “light red Chevrolet” with a green a nd white li cense plate. Groseclose noted, however, that he had been unable

to read t he vehic le’s lice

nse plate number. Adams recalled that, during the conversation, Barton Mount was standing in the G rosec loses’ driveway and also appeared to be cr ying.-6- Finally, Adams testified that she and her husband attended Debora h’s fu neral and , afterw ards, visited the Groseclose home. When the Adamses arrive d, Groseclose was sitting in the living room, and life insurance documents were spre ad out before him on the coffee table. Grosec lose remarked “that he wasn’t so much concerned about the killers being caught; t hat he jus t wanted to get on with his life and pay his bills.”

Deborah’s moth er, Aline Watts, also testified on behalf of the State at trial. She recounted that, on t he morning of Wednesday, June 29, 1977, at approximately 10:00 a.m., she received a telephone call from Groseclose at her Memphis home. A

ccordin g to Watts, Grosec lose asked“if [Watts] had heard from Debbie; that he r office had call ed and sa

id that she h ad not com

e to work yet and wanted to know if she was taking the day off.” Groseclose explained that he had left the house that morning beforeDeborah in order to collect his paycheck fr om the Navy recruiting station and had taken his infant son Nathan with him. Groseclose sounded “pretty chipper” and, when Watts sug gested th at he ca ll the police, replied that alerting the police would be premature because “[Deborah] might have stopped off for bre akf ast or so mething.” Groseclose only agreed to call the police when Watts threatened to do so herself.

Notwithstanding Grosec lose’s a ssuranc e, Watts called th e police . Watts a

lso periodic ally spoke with Groseclose on the telephone throughout the morning because Na than had been ill and Watts was concerned about her gr andchild. She again noticed that Groseclose was “calm - - chipper.” Finally, at approximately 12:00 p.m. or 1:00 p.m., Watts decided to drive to the Groseclose home, pick up Nathan, and take the baby to her ow n home

until they were able to find Deborah.

Watts recalled that, on that Wednesday morning in June, she was afraid “something really bad hadhappened.” Accordingly, she car ried an i ce pick with her to t he Groseclose hom

e in

case she need

ed a wea pon. More over, up on arriving at the Grosec lose home , she immed ia tel y searched the back yard, including a shed and a playhouse, for he r da ughter. She then entered the house through an unlocked, sliding patio door. A young man whom Watts later knew as Barton Mountwas stan ding in th e living room, and Groseclose was in the baby’s bedroom. Before retrieving Nathan, Watts unsuccessfully s ear ched the home for her daughter. During her search, Watts could hear

the washing machine running. She could also hear Groseclose and Mount talking in the kitchen, albeit she could not distinguish their words. Subsequently, she b riefly sp oke with Groseclose. At this time, Groseclose appeared to be nervous and informe d Watts that Deborah had been awake and getting ready for work when he left home that morning wi

th Nathan . Accor

ding to Groseclose, Deborah had laid out the clothes she intended to wear to work but wa s not yet dressed. After sp eaking w ith Grose close, W atts also q uestione d severa

l neighbor s.

As she was returning from a neighbor’s home, Watts noticed an “olde r model wh

ite station wagon” parked underneath t h e Grosecloses’ carport and a man w hom she later knew as Phillip Britt standing on the front porch speaking with Groseclose. Watts ran onto the front porc h and briefly a

nd futilel y confro nted Britt c oncerning her da ughter’ s disappe arance . Sh e then retri eved Nathan and got into her car. Before she left, Grosec lose requested his paycheck, which he had lef t-7-

in Nathan’s diaper bag. Watts rolled down her ca r window a

few inches and passed the paycheck to Grosec lose through the na rrow ope ning. She a

lso showe d Grosec lose the ic e pic k that she had brought with her and stated, “If Deborah had been he re, and s he were

hurt, this is what you

would have gotten.”
Subsequently, on Tuesday, July 4, 1977, Watts learned that the police ha d found Deborah’s b od y, and on July 7 she buried her daughter. Following Deborah’s funer al, on July 8, Watts went with

David Fole

y, Debor ah’s ex- husband, to the Groseclose hom e inorder to collect her daughter’s possessions. These possessions included a wedding band that perfectly matched a n engagement

ring take n from the

Grosec lose home

by Phillip Britt at the time of Deborah’s murder and ident ified by h im at the a

ppellant s’ trial.

Melville J. Taylor testified on behalf of the State that he had known Groseclose since 1974 when Taylor was a probation officer f or the Shelby County Juve nile Court and Groseclose was

a volunteer auxiliary probation officer under his supervision. At the time of Deborah Groseclose’s murder, Taylor was a campu s police offi cer for the University of Tennessee a t Memphis. On Monday, June 27, 1977 , Taylor en counter ed Groseclose une

xpected ly at a co nvenienc e store in Memphis called the Cracker Barrel Quick Stop. Grosec lose was accompanied by a man whom he introducedas Barton Mount. During this chance encounter, Gro seclose asked Taylor if he could borrow money. Taylor agreed to loan the appellant $50, which Gr oseclose promised to repay within

one week. A

t trial, Ta

ylor coul d not other

wis e recall t

he conte nt of his c onversa

tion with Groseclose. Howeve

r, Taylor acknowl edged tha

t in a July 5, 1977 statement to the police he related Groseclose’s comment to him that the appellant had been in Kingsport the previous week looking for a new job and had received a job offer.
Taylor also testified at trial that on Wednesday, Jun e 29, he re ceived “six, seven,

e ight, or nine” messages from Groseclose on his telephone a nswering machine, the f

irst messag e having been re corded a

t approximately 11 :00 a.m. I n his mess ages, Gros eclose indicated that he needed to speak with Taylor. Grosec lose’s vo ice sound ed excit ed and ur gent. When Taylor returned Groseclose’s calls at approximately 5:00 p.m., Gro seclose asked him

to come to Groseclose’s home. When Taylor arrived, the appellant stated that his wife had disappeared and that he was concerned for her safety. Accordingly, Taylor volunteered to dr ive G r oseclose along the route that Deborah would most likely have taken to her workplace that morning.

During the ensuing, unsuccessful search, Taylor drove his truck, a nd Groseclose sat in the passe

nger’s s eat. Whi le Taylor looked fo r Debor ah’s veh icle, Gr oseclose simply stared down at the floorboard with his hands on his face. They re turned to Grosec lose’s ho me at app roximate ly 10:30 p.m. or 11: 00 p.m. At some time before Taylor’s departure, Gr oseclose repaid the$50 loan. Taylor concluded at trial that, on June 29, 1977, Groseclose “acted upset but not upset.” Taylor explained that Groseclose’s emotional state appeared somewhat contrived.

The Stateadditiona

lly presented the testimony of Richard Sojourner that, on June 29

or 30, 1977, he was an officer with the Memphis Police Department and received a missing person-8-

report on a woman named Deborah Groseclose. Sojourner recalled that, pursuan t to the missing person report, he spoke with Deborah’s family members, including her mother and her husband, and also spoke with several of Deborah’s acqua intances. Groseclose inform ed Soj ourner that, on Tuesday, June 28, his wife had been confronted in a parking lot by a stranger as she was walking towardher car after work, and the stra nger had followed

Debora h home . Groseclose further

recoun ted to So

journer that he was at home when his wife arrive d and that she was “frightened, upset.” He recalled that he observed an unf amiliar vehicle being driven away from the house but was unable to discern the license plate number. Groseclose remarked to Sojourner that

[h]e had gottenangry at

Debbie b ecause

she ref used to pa

rk in what he considered to be . . . a safer area in the parking lot [at work]; that the people

that she worked for

had paid her an additional fee to pay for the park ing, yet sh

e opted to park in a free area

of the pa rking lot. And she was going to change and start paying to park in a safer area. But he indicated that she had been worki ng there for five years and th at the re hadn’t been any accidents or a nything, and it was about time for something to happen.
Groseclose provided to Sojourner descriptions of both the threatening strange r and his vehicle. Specifically, Groseclose described the strange r as “a male white

with longer brown hair. He had on a sleeveless-type jacket that [Debor ah] thought had a motorcycle-typeemblem on it or something of that so

rt.” Gro seclose

also described the stranger’s vehicle as “ a ‘68 or ‘69 Chevrolet Impala, [dark] red, and

it had lice

nse plates that were green on white. He was very certain about the make of the vehicle - - had indicated that he had, for a short pe riod of time, worked for [G]enera l [M]otors and described the similarities between the two-yea r model vehicles.”

Grosec lose also rela

ted to Sojou

rner tha t, on the mo

rning of h is wife’ s d isappearance, he last saw her at home putting on the uniform that she was required to wear f or work. Grosec lose had to drive to

th e Navy recrui ting statio n that morn ing to pick

up a payc

heck, a nd, when h

e left, Deborahwas partially dressed. Specifically, she was wea ring pants, but the matching top was still hanging in the laundry room

. When Groseclose returned from the r

ecruiting station, “[Debo

rah’s]

car was gone, and

that uniform was gone, and her purse was gone.” Deborah’s car was a “white ove r green” 1970 Plymouth Fury III convertible.

Grosec lose admitted t

o Sojourner

that he a nd his wife had been experiencing marital difficulties but asserted that “they had been working on them, and things seemed to be improving.” Groseclose also confided to Sojourner that Deborah’s mother had threatened him with an ice pick after learning of Deborah’s disappe arance and had taken charge of his and Deborah’s son Nathan. Sojourner recalled that Groseclose was not concerned about his son’s safety but did seem concerned about his wife a nd appea red to cooperate in Sojourner’s investigation. Indeed, Groseclose informed Sojourner that, on the evening following his wife’s disappearance, he ha d unsuccessfully searched for her with the assistance of an acqu a intance who was also a police officer or a reserve police officer. Sojourner ultimately distributed a missing person bu lletin a nd a photograph of Deborah throughou

t the Memph

is Police D epartme

nt.-9- Officer William Rho des of th e Me mphis Police Department testified that, on Tuesday, Ju ly 4, 1977, at appro ximately 1 2:05 p.m., h e was disp atched t

o Memphis’ main public library on Peabody and McLean streets to investigate a suspicious vehicle that was pa rked in the library’s parking lot and emitting a strong odor. Rhodes recounted at trial that, when he arri ved in the parking lot, he observed a green “Plymouth Fury III” convert ible with “an extreme amount of flies on the trunk.” He detected an “extre me strong sweetening-type sickening odor along with the massive amount of flies.” He related to the jury that t

he smell c oming fro m the par ked vehic le was similarto “[s]omething in advanced stages of decay or pe trifaction. AndI’ve smelled both human and animal before, and it fit in that category.”

Rhodes further recalled that earlier on July 4 he ha d overheard a broadcast co ncernin g
a missing woman, which broadcast described the woman’s vehicle a s a “white over green convertible” and included the vehicle’ s license plate num

ber. Rhod

es had recorded t

he broad cast license plate num

ber and w as quickl

y able to match it to

the licen se plate

number of the abandoned vehicle in the library parking lot. Accordingly, Rhodes “advis ed the dis patcher that I ne eded my lieutena nt. I needed homicide division, and Ineeded the crime-scene division to my scene.” When th e poli ce ultima

tely opened the tr

unk of the

abandoned vehic le, they d iscover ed “a ba dly decomposed female.”

Dr

. Charles Warren Harlan, a for ensic pathologist and a member of the Shelb y County Medical Examiner’s staff, testified at trial that he too was dispatched to the parking lot of Memphis’ main public library on July 4 and witnessed the opening of the abandoned vehicle’s trunk. At trial, h e reca lled his initial view

of the tru nk’s cont ents: The body was tha t of a decomposing female human being, and the person was clothed in a garment which originally had apparently bee n
w hite. And the person was in a position so that they were lyi ng o n their back with their feet and arms undernea th or beneath them. The doctor was immediately able to estimate that the woman had been dea d for between

four and ten days. He ordered that the body be removed from the trunk and transferred to the medical examiner’s morgue.

In performing anautopsy, Dr. Harlan first consulted with a forensic odontologist, Dr. Harry Herbert Mincer, for the purpose of identifying the body. He thereby confirmed that the body had belonged to Deborah Groseclose. Dr. Harlan then performed external and internal exa minations of the body in

addition to

a toxicological examination. The latter revealed a blood-a lcohol level of .09 and trace amounts of carbon monoxide. Harlan note d that the blood-alcohol level was consistent

w ith levels of e thyl alcohol produced during the decomposition of a body. The trace a mounts of carbon monoxide were “consistent with car exha ust.”

The external examination of Deborah’s body re vealed the presence of four stab wounds in Debo rah’s b ack and four corresponding slits in her clothing. The stab wounds were located“reaso nably clo se together” eith er “in the midline”

or “sligh tly to the left of midline in the back.” They mea sured, a pproxima tely, bet ween one and one- quarter

inches a nd two and

one-half-10-

inches in depth. The doctor concluded that the wounds had bee

n inflicte d prior to

Debora h’s deat h and, more over, we

re not the mselves le

thal.

An internal examination of Deborah’s body sugg est ed to Dr. Harlan t hat the c ause of Debora h’s deat h was syste

mic hyperthermia or “total body overheating.” The doctor explained “systemic hyperthermia” to the jury:

The mechani sm of dea

th from sys temic hyp erther mia is that the body ha s certain

regulat ory mech anisms tha

t enable it to keep

its bod y temperature in acertain

range. One of those includes the presence of f luids in the body. In an attempt to maintain body temperatur e i n adverse hot environments, the person will sweat an d w ill perspire, and this is significant because the evaporation of water from the body surfaces acts just the same as an ai r c onditioner in that it cools the body.

You can see

the same thing if you’re hot and

sweaty a nd you stand in front of a fan. You will feel cooler than the normal air temperature aroundyou, and that’s because you’re evaporating the wa ter much more rapidly.

As the body temperature goes up, and as you lose more of the water, eventua lly you lose so much water that you can no l on ger prop erly regulat e the body te

mperatu re, and t he body te

mperatu re goes up much more rapidly.

Th e prob lem with the body temperature going up is that when you reach a body temperature of about 107.5 degrees f ahrenheit, you start to coagulate the protein in the body. Basically you cook.

Dr. Harlan recalled

that, on Wednesday, June 29, 1977, the temperature in Memphis

rose from seventy-five degree s Fahrenh eit to app roximate ly eighty- five deg

rees before 11: 00 a.m. and ultimately

peaked at ninety-three degrees in the a fternoon. He further recalled tha t the area of the library parking lot in which Deborah’s vehicle was par ked was not shaded by any trees. T he doctor opined that, “with an ambient te mperatu re . . . in that area of somewhere around 90 de grees,” the temperature in the trunk would have reached between 120 and 130 de grees Fa hrenhei t. Accord in gly, the body temperature of a person locked in the trunk would re ach or exceed 107. 5 degrees within one to four or five hours. Dr. Harlan concluded that Deborah “cooked to death in the trunk of that automobile.”

Dr. Harlan s pecific ally excluded either manual or

ligature strangul ation as th

e cause of death. He conceded, however, tha t “putting the arm around the thro at i[n] what is co mmonly calleda choke

hold” would not nece ssarily le ave the p hysical e vidence that commo nly resul

ts from-11-

manual or ligatur

e strangulation, a

nd a “ch oke hold”could

cause a loss of consciousness or death. Dr. Harlan elaborated:

[U]nco nsciousne ss in a choke ho l d . . . can occur a nywhere from a matter of a

few seconds, normally up to about thirty seconds, and it goes out to a time of three to five minutes. After three to five minutes of occlusio n of an ai

rway, then a per so n is going to die, or an occlusion of the blood flow, unl ess ther e is some attempt to bring themback. You begin

to see irr eversib le brain

damage at about five minutes. After ten minutes, basically the ballgame is over.

The St ate addi t ionally presented the testimony of Officer Lavern Childers of the Memphis Police De

partmen t’ s Homicide Bureau th at, on July 4, he and

his partner, Jimmy Hammers , drove to the Groseclose home and informed Groseclose a bout the discovery of his wife’s body. Childers r

elated to the jury a t trial tha t, upon learning of the discovery, Groseclose displayed

no emotion but inquired if his wife had diedin an automobile accident. The officers responde d that they were un able

to provide him with information concerning the manner in which his wife had died and asked that he accompanythem to the Homicide Bureau for questioning. Childers recalled that Groseclose was cooperative.

Subsequently, on July 6, Childers and Hammers returned t o th e Groseclose home. They initially a sked that

Grosec lose identify a purse recovered by police from a nearby Walgreen’s drug store. Groseclose confirmed that the purse had be longed to his wi fe. He also informed the officers that five credit c ards we re missing

and that, although t

he purse contained no cash, Deborah had c ustomarily carried between five and ten dollars in her wallet. Childers and Hammers next askedGroseclose to descri be his activities on the morning of June 29, prior to his wife’s disappearance. Groseclose recounted that he left home at a

pproxima tely 6:00 a .m. to go to

work at the Navy recruiting station. When the officers inquired

about a white station wagon that had been

seen at the Groseclose hom

e on June 29, Groseclose added that a man named “Bill Britt” had visited the house on that day. Groseclose later corrected himself and sta

ted that th e man’s n ame was P

hillip Britt. In any ev ent, Gro seclose related to the off icers tha t he had a ttempted t

o recruit Britt into the Navy, but the Navy had rejected Britt’s application. Groseclose noted tha t Britt had probab l y obtained his address either from his supervisor at the recruiting station or from a ma n named Mou

nt. Grosec lose concluded that his mother-in- law and Br itt were the only two people to visit him on the morning of June 29.

On July 8, Childers and Hammers visited the Groseclose residence a third time. On this occasion, the officers questioned Groseclose c oncerning his activities during the days or weeks preceding June 29. Groseclose recounte d to the officers that

he had gone to Kingspo rt, Tenne ssee, on a trip. He c ame back to M emphis on June 25 th and June 26 th ; and due to the fact that he and his wife, Debbie, had been having marital problems, he staye d in his car at a campground at Lakelan

on the night of the 25 th and the 26 th

.

. . .-12- . . . .
And he said that on the 27 th , he came home, but he did not spend the night, there again, because of the marital problems.

He said that he had gone over to a man’s house named Paul Cooney

. . . to talk to

him about starting to stay with him. And then we said, “Well, where did you stay?” He said th at he sta yed in his car, but it

was in front of a man’s house named Bart Mount. So he spent the night there.

And then the next day, on t he 28 th , he came home because he and Debbie had an appointment to take the baby to the doctor because she gotoff work early that day. And they had a clinical appointment, and al s o an appoin

tment to ta

ke him by th

e hospita l. He said

they did that, and then they got

home on the 28 th , and he left about 5 o’clock,

or maybe just a little bit after that, and he said that Deborah was going to ca

ll the police department and report that a male white had followed her home

on the 28 th , and she was very frightened about it. She was going to call and tell the police department about that. And then he said, later on that night, at 8 o’clock, I believe it was, that he had an appointment - - or she had an appointment, I ’m sorry, to go

see a marriage counselor, and also, she was going to go and talk to a good friend of hers named Dallas Kaylor.

And then she came home, and I believe he said she got home a round 10:00 or 11:00. Grosec lose concluded that he spent the night of June 28 at the Groseclose home because Debora h “was so f rightene d about thi s male white following her home that day.” However, he slept on the couch in the living roo m du e to his ongoing marital difficulties. When he left the house the following morning, h

is wife’ s car wa s parked

underne ath the c arport.

J.D. Mattox, a crime scene officer employed by the Me mphis Police Departm ent, testified at trial that, on July 4, 1977, he was dispatched to a Walgreen’s drug store in the F ra yser neighborhood of Memphis. He recounted that, inside the drug store, the employee s directed him to

a trash co llection a

rea at th e rear of the sto re and showed him a

white vinyl purse. Upon examining the purse and its contents, Mattox discovered cards and other items bea ring the name of Deborah Groseclose. Mattox was unable to recover a ny latent fingerprints from the purse.

Ken East of the Memphis Police Department ’s Homi cide Bure au testif ied that, follow ing the discovery by police of Deborah Groseclose’ s body and a preliminary investigation, he was in structed

to locate a man nam

ed Phillip Mi chael Br

itt. East related to the jury at trial that he was successful in locating Britt, who on July 11 prov ided a sta te ment implic ating himse lf in1 At the t ime of Debora h Grosecl ose’s murder, the of fense s of r ape, r obbery by t he use of

a deadl y weapon, and kidnap ping to com mit robbery were pun ishab le by imp rison me nt in th e pen itentiary for life. T enn . Cod e A nn. § § 39 -2 60 3, 39 -3 70 2, & 39 -3 90 1 ( 19 75 ). Ac co rd i ng l y, t he s e o ff en s es we re pr os ec ut ab l e “ at an y t i me after

the offen se[s] shall have been c omm it ted. ” Tenn. Code An n. § 4 0-2 01 ( 197 5); see g ene rally Stat e v. J ames Webb , No. 02C01- 9512- CC-00 383, 199 7 Tenn . Crim. App. L EXIS 188, at **11-2 0 (Jackson, February 2 7, 1997).
-13- Deborah’s murder. On the same day, Britt directed police t o a “Union 76" service station where office rs reco vered tw o pairs of

gloves.

Britt was the Sta

te’s prin cipal wit ness at the appell ants’ tri al. He testified that he was forty-one years old and had been inca rcerated i n the Tennessee Department of Correction for approxim a tely twenty-one years due to his conviction of the first degree mur der of Deb ora h Groseclose. Britt related to the jury that, in June 1998, he w as trans ferre d from a minimum secu rity penal facility

to a highe

r grade security facil i ty and, in July 1998, was approached by prosecutors about testifying on the State’s behalf in the instant case. The prosecutors referred Britt to an attorne y named Trent Hall for assistance in deciding whether to cooperate.

After consulting with Hall, Britt agreed to testify trut hfully in t he instan t case in return for immunity fromprosecu tion for a ny unindic ted crime s relatin g to the murder of Deborah Groseclose; an agreement by the family of Deborah Gr oseclose to forego any civil suit a gainst Britt relating to her mur

der; agr eements by both

the State and the family of Deborah Groseclose to fore go any opposition to Britt’s release on parole by the boardof probation and parole; an agreement by the Stateto advise

the boar d of proba

tion and pa

role of Br

itt’s coop erati on in this c ase ; and Britt’s transfer from the custody of the Tennessee Department of Corr ection to another

penal facility for the purpose of ensuring his safety.

Britt asserted that, in entering i nto th e above agreement, he was conc erned that he would still be subject to prosec ution for “[e]specially aggravated ra pe, especially aggravated robbery , and especially aggravated kidnapping” in connection with the murder of Deborah Groseclose. He noted that defense investigators had advised him of this possibility during interviews in 1998. 1 As to his immunity from an

y civil suit

brought by the family of Deborah Groseclose, Britt noted that he possesse d less tha

n one hund

red dolla rs. However, he also noted the possibility of earning more money should he be released from incarce ration. He confirmed that he would be eligible f or parol e the following year. Specifically, a parole hearing wa s scheduled in December 2000. He conceded that he had previously and unsuccessfu lly filed numerouspetitions f or cleme ncy in an a

ttempt to obtain release from the Department and that he be lieved his chances of being released on par ole were very “sl im” abse nt the abo ve agre ement.

Britt added tha t, pending any future release on parole, he ha d in fact been transferred from the Tennessee D epartme nt of Corr ection to the Bartl ett

City Jail. In this regard, he conceded that he had previously initiated a lawsuit against the Tennessee Depar tment of Correction due to the Department’s provision of inadequate medical facilities for the treatment of Britt’s phlebitis. He observed that he was receiving better medica l care while incarcerated in the Bartlett City Jail. He-14-

related that, approximately every six weeks, investigators fro m the District Atto rney General’s office transportedhim to his doctor’s office and also assisted him in obtaining his medications. According to Britt, the D istrict At

torney General ’s offic e had ag reed to p rovide theseservices for

the duration of his incarceration in the Bartlett City Jail. He observed, however, that he did not enjoy as many “perks” in the Bar

tlett City Ja

il as he ha

d in the De

partmen t.

Britt recalled that, three m on ths prior t o the insta

nt trial, p rosecut ors provi ded him withthe transcript of his testimony during the sentencing phase of his 1978 trial. He also reviewed copies of his statements to the police. As to any discrepancy between his testimony at the 1978 trial and the instan

t trial, Britt explained, “In 1978, we were trying to ease wha tever the court was going to do to us. Some things were just not said.” Britt asserted that he was testifying truthfully at the instant tr ial.

With

respect to the murder of Deborah Groseclose, Britt recalled that, in the summer of 1977, he was nineteen

years old, living with his parents, and employed as a playground director for th e Memphis Park Commis sion. He h ad one tw o-year -old son f

rom his bri ef marr

iage to appellant Rickman’s sister, Lanette. Britt divorced Lanette on June 2, 1977, and, until his arrest for the murder o f Debor

ah Groseclose, ha

d custody o f his son. Br

itt was also an alcoholic and addicted to “speed.” He occasionally abused coc aine and marijuana.

Britt further related to the jury th at, prior to his employment by the Memphis Park Commission, he had a

ttempted t

o enlist in t

he United States Na

vy. At tha

t time, Brit

tbec ame acquainted

with appellant

Groseclose, who processed Britt’s application. The Navy rejected Britt’s application for medical reasons, but, in the summer of 1977, Groseclose conta cted Britt and asked that he visit the recruiting station b eca use “there was a mix up with some of the paperwork f rom when I hadtried to enlist.” When Britt arr ived at the recr

uiting stat ion, Gros eclose w as await ing him along with Barton Mount. Britt knew Mount, who was a childhood friend, but had not seen h

im in several years due to Mount’s enlistment in the Navy in, approximately, 1975.

Following his meeting with Groseclose and Moun t at th e recr uiting stat

ion, Britt began “hanging around” with Mount once again, seeing him perhaps two or three times each week. On one occasion, Britt visited the Groseclose home with Mount and briefly encountere d Deborah. In any eve

nt, in June

1977, Moun

t telepho ned Britt a

t home and

asked Br itt if he knew anyone who would be willing to kill Deborah for a fee. Mount indicated that Groseclose would bewilling to pay $50. Britt resp onded tha

t only a “j unkie” w ould

be willing to kill someone for such a paltry sum but agreed to “chec k around .” Contra

ry to his pr

omise, Br it t made no attempt to locate a prospective killer.

O ne or two days later, Mount called once again and inquired if Britt had f oun d anyone willing to kill Deborah for $50. Britt replied that Mount was not going to be abl e to find anyone willing to kill the victim for tha t pr ice. Britt then heard Groseclose’s voice in the background

saying, “Okay, $200.” Mount co mmunicated the incr eased pr ice to Britt, who ag ain stated that he would “look around .” Britt a sserted

at trial th at, once

again, he made no a

ttempt to-15-

locate a prospective killer and “had no real intention o f trying to

find anyone.” He explained that he only agreed to “look around” because he wanted to appear to be a “tough guy.”
During this time, Britt was also regularly visiting his former brother-in-l aw, appellant Rickman. Rickman was then living with a girlfriend named Pamela Baker in a Memphis apartment rentedby a man n amed Donnie Tatum. In fact, Tatum had formed a motorcycle gang, the “Avengers,” that included himself, Rickman, andBritt. None of the members owned a motorcycle, buteach wo

re a den im jacket witha rebel flag sewn onto the back. Du ring one o f his fre quent visits to the Tatum apartmen t, Britt re counted to Rickman his conversations with Mount about the proposedmurder o f Debor ah Groseclose. Ric

kman in tur

n stated h is willi ngness to commit the murder. Tatum wa s home at th e time and o verhea

rd Rickma

n’s state ment. Bake

r was als o home but in a different room.

Britt subsequently called Mount and stated that he had fo und someon

e willing to

kill Deborah. Mount arranged to meet with both Britt and Rickman a t the p ark where Britt was employed. The meeting occurred between one and one -half and two weeks prior to Deborah’s death. At the meeting, Mount

agreed to the 200 [dollars ]. Uh, that when the insurance came in, there would be more; and uh, I believ e that fig ure was 500 [dolla

rs]

more for Ron, a

nd I was to

get a hundred dollars ju st

for setting it up. Mountalso info

rmed Rick

man wher e Debor ah could be found “at certain times of the week at certa in times of the day,” stating that he had received the information fr om Groseclose.
Following the meeting in the pa rk, Mount a

rran ged a sec ond meeti ng, this time betweenhimself, Groseclose, B r itt, and Rickman at a reputedly “gay” bar in Memphis called the FrontPage. Britt conce ded at tr ial that he

could not r

ecall precisel y when this second meeting occurred, noting tha

t it likely occurred the weekend prior to Debor ah’s murder. In

any event, he was able to recall that “the gist of the conversation [at the meeting] wa s that Bill w anted [t he murde r] to look like a robbery that had gone bad.” Specifically, Gr oseclose asked that Rickman c o mmit the murder in the middle of the day on Tuesday, June 28, 1977, in a parking lot that was located behind

a Krystal’s restaurant and in which his wife regularly pa rked her car while at work. Groseclos e describ ed his wif

e’s car and instr ucted Ric kman to le ave Deb orah’s b ody in her car in the parking lot.

On Monday, June 27, Mount met once again with Britt, Rickman, and Pam Baker at the Front Page. Mount communicated to them the precise pa rking place in which Deborah’s car would be located on June 28, and the three men review ed the plan formulated at the prior meeting.

On June 28, Rickman drove alone to the parking lot behind Krystal’s and awaited Deborah. Accord

ing to Britt, Rickman r

eported afterw ards that he decided against murdering Deborahin the par

king lot be cause

too many peop le were

present . Instea

d, when D eborah g ot into her car and drove out of the parking lot, Rickman followed her for approximately eig

ht or ten mi les. Rickman also reported to Britt that Deborah appeared to notice that Rickman was following her. At-16-

the time, Rickman was driving Pam Baker’s car, an “ugly red or

a brown”car with

Oklahoma

license plates. Rickman’ s hair wa s curly a nd long en ough to co ver his e ars, and he was we aring his “Avenge rs” jacket.
Following the aborted

murder attempt, Britt telephoned Mount and arranged another meeting betwee

n Grosec lose and R

ickman th at same e

vening at a Shoney’ s Restaur

ant. Pa mel a Baker accompanied Rickman to the restaurant. Britt, however, did not attend the meeting, only later meeting with Rickman at

the Tatum apartment. Both Pamela Baker and Tatum were pre sent in the apartme nt, albeit Britt was unsure whether Baker overhear d the ensuing conversation. During thi s conversation, Rickman confirmed that he had met with Groseclos e at Sh oney’s, and Rickman related the newly revised plan to murder Deborah. Tatum indi cated th at he wa s unable t o assist Rickman in committing the murder due to his work schedule. Rickman therefore inf ormed Britt thathe would have to participate in the murder. According to the new ly revised plan,

when we got to

the [the Groseclose home] [on the morning of Wednesday, June 29], Bill would meet us - - that there was a she d in t he back. We would stay there until he left with the baby. And we

were to rape her and kill her and then put her in the ca r andtake her to the parking lot where

she norma

lly parked and leave the car ther e. Britt did not object to participating in the murder, explaining at trial that he was afraid of Rickman. Britt asserte d that he h ad previ ously “se en [Rickma n] scuffle with guys before. I knew what he could do.”

At

approximately 11:00 p.m. on the night before Deborah’s murder, Britt left his car,

a white 1966 Chevrolet station wagon, in a parking lot adjacent to the one behind Krystal’s in which Deborahregularly parked her convertible. Rickman and Pamel a

Baker followed Britt in Baker’s car and drove him back to the Tatum apartment, where he a n d Rickman dr

ank bee r all night . Britt explainedthat he drank beer throughout the night preceding the murde

r becau se he “wanted to be numb.” In the morning, Britt was drunk but “functional.”

At approximately 5:00 a.m. on June 29, Baker drove Rickman and Britt to a location within five blocks of the Groseclose residence. Britt was not carrying any weapons. He recalled, however, that Rickman always c arried a pocke t knife with a three-and-one-half or four inch blade. As planned, Groseclose met Britt and Rickman at the gate to his backyard. He led them to ashed, which he unlock

ed, instr ucting the m to “[h]a

ng aroun d in here unt

il I leave .” While

Rickman and Britt waited, Groseclose brought them cigarettes. Ultimately, Groseclose left the house in his van, taking his inf

ant son with him and leaving a rear, sliding patio door unlocked. Deborah’s green Plymouth convertible was parked in the carport. The sun was beginning to rise.

Rickman and Britt ente

red the house through the pa tio door. Brit

t recoun ted that b oth he and Rickma

n were w earing g loves tha t they had

obtained from the s hed outsid

e. His gloves consisted of

a camouflage material, and Rickman’s wer e white. After

entering the house, Rickman advanced to the bed

room, whe

re Debo rah, dre ssed in a n

ightgown, was dozing on the bed. B ritt remained in the bedroom do or way. According to Britt, Rickman stood over Deborah, who soon-17-

openedher eyes. When she saw Rickman, she tried to roll off of the bed. While screaming for her husband, she noticedBritt standing in the bedroom doorway. Rickman then placed his hand on her shoulder and said, “Don’t do that again.” When Debor ah froze, Rickman

further instructed

her to undress. Deborah complied, and Rickman was pulling down his pants when Britt left the bedroom and went into the living room. Sometime later, Rickman instructedBritt to return to the bedroom and stated that it was his “turn.” Accordingly, Britt raped Deborah. Britt recounted tha t he spoke to Deborah during the rape and asked her if she hated them. She replied that she was afraid.

After being raped, Deborah was “[v]e ry quiet.” Ri ckman and Britt permitte d her to take a bath and dres s in a nurse’s uniform. While Deborah was bathing, Rickman spoke with her and informed her that he and Britt had been hired to kill her. Upon hea ring this, Deborah was silent forappr oximately

one minute . She then

asked Ric

kman how m

uch he wa s being pa

id. Ric kma n responded

that he was being paid $1,000, whereupon Deborah of fered to pay him more mone y in return for sparing her life. At this point, Britt left the bathroom, went into the kitchen, and obtained

a soda fro m the ref

rig era tor. While waiting for Rickman and the victim, Britt also searched Deborah’s purse. H e remove d a First Tennessee Bank card

and eight dollars and some change. He conced ed that he may also h ave take

n some cr edit car ds.

After searching Deborah’s purse, Britt retu rned to th e bedroo m, where Deborah was

now getting dressed. Britt asked her for the p erso nal identification number (PIN) assigned to the First Tennessee Bank card. She informed him that the PIN was wr itten on a piece of paper in her wallet. According to Britt, Deborah was “remarkably c alm.” Britt obtained the piece of paper from her wallet a nd, while still in the bedroom, also removed a diamond engagement ring from a je welry box. Britt recalled at trial that he later gave Deborah’s ring to a girlfr iend. He identified at trial the ring that he removed from the Groseclose home and ga ve to his girlfriend.

After Britt had taken the

diamond e

ngageme nt ring, Ric

kman instr

ucted him to “[g]o to the fron

t o f th e house.” Britt returned to the living room and also went into the kitchen, rummaging through Deborah ’s purse once again. At some point, Britt heard Rickman calling urgently to him. When Britt arrived in the bedroom, Rickmanwas choking Deborah. Specifically, Rick man was stand

ing behind

Debora h with his r

ight hand a

gainst De borah’sthroat a

nd his “lef

t wrist [intersected] below [his] right wrist to perform some sort of leverage.”Deborah was kneeling

on the floor and attempting to scratch Rickman’s face. Rickman instructed Britt to hold Deborah’s hands, and Britt

held her hands for approximately 30 seconds until she “went limp.” Rickman next instructed Britt to check Deborah for a pulse. As Britt checked her wrist, however, Debora h “was unbalanced” and fell to the floor, hitting her head and moa ning or gasping.

Once more, Rickman instructed Britt to leave the bedr oom, and Br

itt went int

o the living room, turning on the radio “[t]o, I guess, mask any sound that would . . . be coming from back in the back

so I would

n’t have to hear it and so nob ody else w ould.” Br itt also peer ed out the window. By this time, he and Rickman had been in the house for at least one hour.2 I nter est ingl y, Britt fur ther re called that, som etim e after 1 0:00 p.m . on th e day follow ing th e m urd er, h e

returned t o the li brary parking l ot and discover ed that Deborah’s convertibl e was gone.
-18- A few minutes later, Rickman called Britt back into the bedroom and asked him to
once again check Deborah f or a pulse. Britt was unable to find any pulse and could not hear Deborah’s heartbeat when he pla ced his head

on her ch

est. Britt also held his hand in front of her

noseand mouth and was unable to detect any brea th. Brit t noticed that blood was flowing from Deborah’s nose. He did not, however, notice tha t she was bleeding from any other location. Moreover, he denied at trial ever witnessing Rickman stab De borah or stabbing Deborah himself.
Believing Deborah to be dead, Britt retrieved her c ar keys from a hook in the kitchen, Grosec lose having previously told Britt and Rickman where the y could find t he keys. Britt then went to the green Plymouth convertible and opened the trunk . He remo ved a pla ypen and threw it into the yard

before assisting R

ickman in carrying Deborah to the car. Britt reca lled, however, that he “couldn’t hold her,” and Rickman “ended up picking her up a nd carrying her,” somehow staining his shirt with blood. Rickman placed Deborah on her back inside the trunk of her car.

As Rickman a

nd Britt drove aw ay from th

e house in Debora h’s car , Britt

noticed that the sun had fully risen and “it was really hot - - I mean really hot.” He and Rickman stoppedonce “[j]ust south of the Grac ie Mae Smit h Bridge”to push th e convertible top down. They each

c ontinued to w ear at least one glove, and Britt conceded that they may ha ve attracted someone’s attention at the intersection of Chelsea and Watkins streets. Britt rec alled tha t they liste

ned to musi c while in the convertible, and Britt denied ever hearing Debor ah make a ny soun d in the trunk. Contrary to their or

iginal pla n, they dr ove to the main public library in Memphis andparked the car in the library parking lot. 2 At that time, there were no other cars in the par king lot. He and Rickman then bega n walking to the par

king lot whe

re they h ad left Br

itt’s car the previous night.

En route to Britt’s car, Rickman and Britt left their glov es in

a storage space behind

a “76” gas station on Union Street. They also attempted unsuccessfully to withdraw money from

an automated teller

machine (ATM) using Deborah’s First Tennessee Bank card, afterwar ds tearing up the ATM card and throwing it out the window of Britt’s car. They also threw out the window the piece of paper on which Deborah had written her PIN and Rickman’s blood-stained shirt. Finally, Britt and Rickman went to a place called “ Big Daddy’s,” where they purchased ha mburgers and sodas usin g the small

amount of

money obta

ined fro m Debora

h’s walle t.

Rickman and Britt

returne d to Rickma

n’s apar tment at a pproxima tely 9:00 a.m. B ritt lay down on the couch in the apar tm ent. Pame

la Baker was also in the apa

rtment, a nd Britt remarked to her that Deborah “wouldn’t die.” Britt ex plained a t trial tha t he was r

eferr ing to Rickman’s unsuccessful attempt to strang le the vic tim. Ultima tely, Britt returne d home to hi s parents’ house, informed his mother that he was ill, and went to bed.-19- Later on June 29 , Rickman r

ealize d that he a

nd Britt had left Deborah’s purse at the Grosec lose hom e , and he b ecame c oncerned that polic e might find this deta il suspicious. Accordingly, Rickman instructed Britt to call Groseclose and discuss theproblem w ith him. Brit t and Grosec lose agr

eed that Britt would

go to the G

roseclo se residence on

the pretext of borrowing

a speed wr ench an d obtain the purse. Britt drov e to the Gr oseclose residence in his white Chevrolet station wagon. A woman whom Britt later knew as Deborah’s mother w as on the front porch, having just emerged from the house. She seemed to be “upset, agitated” and said s omething u nintelligi ble to Britt. When he asked h er to repeat wh at she had said, she stated, “Let Bill tell you.” She then returned inside the house, and Groseclose emerged, handing Britt a speed wr ench and a paper sack containing Deborah’s purse. In accorda nce with additional instruc tions he h ad received from Rickman, Britt then asked Groseclose to amend the second installme nt due on th

e murder contract, which installment was tied to Groseclose’s receipt of life insurance proceeds, from

$500 to $300 and Groseclose’s .45 semi-automatic pistol. Groseclose replied, “Brother , you’ve got a deal.”

After leaving the Groseclose residence, Britt threw De borah’s purse into the garbage at a convenien ce store located several blocks from the Grosec lose home. He then returned to the Tatumapartment. Later, Rickman and Britt called Groseclose from a pay telephone a t a nearby 7- Eleven. Rickman spoke with Groseclose on the telephone. Britt recounted:

H e lo oked at me

when he w as talking

on the pho ne he sai d, “No, it

was fr om her nose. ” I said “What”? He said, “He asked me where the bloo d came f

rom,” and he said, “It was from her nose,”and Ronnie had this an off

- - it was like he was kind of shocked by what he heard, and then

kind of amused, too. He said that Bill said he had hoped it came from the other end.
At some point, Britt and Ri ckman dr ove to Moun

t’s home in Baker’s vehicle and obtained the initia

l $200 insta

llment due

on the mur

der cont ract. Af terwar ds, Britt a n d Rickman returned to Tatum’s apartment, where Rickman began working on Baker’s car. The landlady soon emerged a nd compla

ined that they wer e playing the car radio too loudly. Ac cordingl

y, Ric kma n paid her a portion of the $20 0 toward

Tatum’s r

ent.

On July 4, Bri tt was celebrating Independence D ay at his parents’ home when he hap penedto pass by a

televisio n during a

news re port that t he police had foun d Debora

h’s b ody

. According to Britt, the “4 th of July was shot.” He drove t o Tatum’s apartment and informed Rickman o f the polic e’s disc overy. Because T atum did no t have a t elevision , Rickman a

nd Britt went to a neighbor’s apartment to watch the news together

.

Britt again met

with Rickman on July 8 or 9 at the Front Page. On this occasion, they learned that the police had visited the Front Page and had shown employees a sketch of a man who looked like Ri ckman. Ric kma n left the bar almost immediately thereafter. On July 9, the police visited Britt’s home and asked him if he would be willing to come to t he p olice department and

answer questions about the murder of Deborah Groseclose. Britt agreed to answer any questions but lied to the police on this occasion, denying any involvement in the murder. On July 11, the police-20-

again asked tha

t Britt acc ompany the

m to the police department and answer questions about Deborah’s murder. On this occ asion, Bri tt confessed to participating in the murder and implicated Rickman, Mount, and Groseclose. After confessing, Britt also led the police to the location where he and Rickman had discarded the gloves used during the murder

.

Britt conceded that from January 1977 to July 1977 he “tried” to be “tot ally fried.” Moreover, he conceded that he had previously told defense investigators that he did not remember the events of 1977. He explained, however, that he c laimed memory loss because,

at that point, I had no legal repres entatio n. Nobody was putting anyth ing on the table except, “We need your he lp.” I told your inve stig ator, the other

investiga tor, and t he D.A.’ s the exa

ct same thing. Everybo dy had the sameinformation on all sides, the playing ground wa s level. He did concede that “some things [in 1977] are blurre d together.” However, he then elabora ted: I live it ev ery day. I dream about it. I

see the e vents. I’ ll live with it forever. Yeah, I know what happened. I know wha twas said. And I also know what I said to the investigators and those people sitting right ther e to your left, and if you also read, in your investigator’s reports , I said, “ I don’t kn ow which w ay I’m go ing to jump yet.” - - I didn’t know which side I was going to go. But yes, sir, I remember it.
Anthony Joseph Scola and Royce Wolfe, who were employee s of a Me mphis company named Motion Industries at the time of Deb orah’s m urder, c onfirmed

at the ap pellants’ trial that, sometime after 7:15 a.m. on a morning in June 1977, a green convertible wa s stopped on the Gracie Mae Smith Bridge. According to Scola and Wolfe, they notice d the convertible as they drove to work bec ause two white men

were ma nually at tempting to

push down the convertible top. Soon therea

fter, Sc ola and Wolfe aga in observ ed the ve

hicle st opped at a traffic light at the intersection of Chelse a and Wa tkins st ree ts. At this time, Scola and Wolfe noticed that the two occupa nts of t he conve

rtib le were wearing gloves despite the heat of the summer morning. Specifically, the driver was wearing “white painter’ s gloves,” and the passenger was wearing gloves consisting

of a vinyl

camoufl age mate

rial.

Jeanne Griffis, a thirty- three- year em ployee of the Fi rst Tennessee Bank, testifi ed that she is the custodial records officer for the bank. She related to the jury that, according to the bank’s record s, Grosec lose opened an ac count with the First T ennesse e Bank on A ugust 6, 1976, and added Deborah’s name to the accou nt on Augus t10, 1976. Accordingly, the bank issued two ATM cards for this account. Card Number One belonged to Deb orah Grose close, and Card Number Two belongedto Groseclose. The following transactions occurred between June 22 and June 29, 1977: June 27, 9 :00 p.m. Card No. 2 Hollywood & James Balance Inquiry: $145.89 Withdra wal: $100 Balance Inquiry: $45.89 June 28, 6 :35 p.m. Card No. 2 Hollywood & James Balance Inquiry: $45.89-21- Withdra wal: $40 June 29, 9 :06 a.m. Card No. 1 Hollywood & James Balance Inquiry $5.89 Griffis confirmed

that all of the above transactions would have required a PIN. She further noted that, in 1977, not all ATM machines were equipped with video cameras, and she had been una ble to ascertain whether the ATM machine on Hollywood and Ja mes streets was so equipped.
Mary Vance testified on behalf of the Sta te that in 1977 she was the manager of Frayser Manor Apartments in Memphis and lived at the apartment complex with her

husband Ralph and her son Ralph, Jr. Vance recalled that in 1977 a man named Donnie Tatum was renting one of the ap artmentsin her co mplex. In June 1977 , Tatum inf

ormed he r that a f riend na med Ronald Rickman would be staying in his apartment for some time. Vance noted that Rickman did in fact li ve in t he Tatum apartment for approximately two weeks, and she also recalled seeing a woman visiting the apartment.

Vance further testified

that, on June 27, 1977, between 10:30 p.m. and 11:00 p.m., Tatum, Rickman, and another man were working on a car outside Tatum’s apartment and playing

a radio loudly. Accordingly, she went outside and asked the three men to reduce the volume. At the time, Tatum wa s in arre ars with h is rental payments . She rec alled tha t, on this occasion, Rickman gave he r $100 tow ard Tatu

m’s rent in five $20

bills.
Ralph Vance, Jr., testified that in June and July 1977 he was unemployed due toan injury but was assisting his mother in performing her duties as a resident manager of

Frayser Manor Apartme nts. Vance, Jr., knew both Tatum and Rickman and was awa re that a womanwas also

living in the Tatum apartment. He recalled that both Tatum and Rickman regular ly dresse d in Levi “cu

toff” “[ m]otorcy cle-typ e” jack ets.

William Hylander, an officer with the Homicide Burea u of the M emphis Police Department

in the summer of 1977, testified that on July 12 of that year he traveled to Tulsa, Oklahoma

with Sergeant Ken East for the purpose of acquiring c ustody of Ronald Rickman, who had been arrested by the Tulsa Police Department. Upon the ir arriva l in Tulsa, the offic ers firs t interviewed

Rickman’ s girlfri end, Pame la Baker . They the

n met with Rickman , showed him the warrant authorizing his ar

rest for the murde

r of Deb orah Gr

oseclose , and advised him of his Miranda rights. Rickman was cooperative and provided the police with a written state ment.
Hylander read to the jury a versio n of Rickma n’s state ment that w as reda

cted to om

it all references to appellant Grosec lose. In brief, Rickmanconfess ed to killin g Debora h Grosec lose withthe assist

ance of Phillip Britt

because they “were paid to.” According to Rickman, the murder contract originally pr ovided that he would receive $200 prior to the murder and anothe r $500 afterw ards. The amount of the s econd ins tallment w as later amen ded to $300 and “a military .45 pistol.” Rickman confirmed that he and Britt raped and murdered De borah inside the

Grosec loses’ Memphis home before placing her body inside the trunk of her c ar and a bandoning the car in the parking lot of Memp

his’ main public library. He noted that, after initially confronting Deborah on the morning of her murder, he briefly reconsider ed his plan to kill her. However, he decided t o3 W ith respect to Rickman’s con fession to the police, t he trial courtinstructed the jury at the close of the Stat e’s proof “t hat t hose s tat ements .

. . [are ] bei ng offered t o you, and you are only all owed to consider it as i t appl ies to t

he guilt or inn oce nce of R on R ickm an. Y ou c ann ot use that inf orm ation , in any rega rd as to the g uilt or in noc enc e of B ill Gro seclo se.”

-22- proc eedas planned because he “was af raid she would get to the police before we could get out of town.” According to Rickman , he initia lly attemp ted to kill Debor ah by “c hoking he

r.” Whe n his effortsproved unsuccessful, however, he used a pocket kn

ife to “stab[] her in the back close to her spine.” Rickman emphasized to police that “Pamela Baker had no de aling with [the murder].” 3

Pamela Baker, who was named Pam ela Roge rs at the t ime of the

appella nts’ tria l, testified on behalf of the State. Baker te stified th at she wa s raised in Tulsa, O

klahoma and, in March 1977, drove to Memphis, Tennessee to visit her brother. She was eighteen yea rs old and drove a brown 1971 Dodge Monaco with green and white Oklahoma license pla tes. She ultimately moved to the F rayser

neighbor hood of Me

mphis and o

btained a job working at a loc al 7-Eleven. Whil e employed at

the 7-Eleven, she met appellant Rickman. Soon thereafter, she developed

a relati onship with Rickman and began living with him in the Tatum apartment. Her relationship with Rickman continued until his arrest for the murder of Deborah Groseclose. In all, the relationship lasted between three weeks and one month. Baker noted that, during the course o f her br ief rela tionship with Rickman, he was “always” telling her that “something was none of my business.”

Baker also rec alled at t

rial that she and Ri ckman of

ten “hung out” at a bar called the FrontPage. Moreover, she noted that Rickman began ha ving fre quent mee

tings with severa l friends , including Britt. Baker

described one meeting between Rickman, Britt, and Barton Mount in a park. She also remembered witnessing a meeting be t ween Rickman and Groseclose at a Shoney’s restaurant in Frayser. On the latter occasion, Rickman and Grosec lose spoke about Groseclose’s wife. G rosec lose mentioned that his wife had been followed home by a stranger one day, and he showed Rickman a picture of his wife. Baker added that, sometime after June 29, 1977, she drove both Rickma

n and Britt

to the Gro seclose

home bec ause Brit

t wanted t o borrow a tool.

Baker conceded at trial that, at some point, she overheard “ something about [Rickman] b eing approached to commit a murder. And I asked him about it, and he sa id thath e h ad.” Baker a

ttempted t o dissuade

Rickman f

rom commit

ting the mur

der. Spe cifically, sh e testified , “I tried to talk him out of it. I couldn’t understand why he could do it or how he could do it or, you know, there was no reason good enough. And he said that he didn’t know the person; they didn’t

mean anything t

o him; he was doing it for the money.” Baker c oncede d that she did not atte

mpt to
run away or

contact the poli ce. She exp lained that she believed she had been successf ul in her efforts to dissuade Rickman from committing the murder.

How ever, on July 4, she and Rickman were at a neighbor’s apar tment watching television, and Rickman exhibited an unusual interest in a news report concerning the disc overy of DeborahGrosec lose’s bo dy. Moreo ver, she recalled one occ asion on w hich she o

bse rv ed Phillip Britt seated on the couch in the living room of theTatum apartment, and “[h]e was rocking ba ck and4 The tri al cou rt instruc ted th e jury at the clo se of th e State ’s pro of tha t it could onl y consi der Baker ’s t est imony

concerning thi s threa t in det ermining Rickman’s, as opposed to Groseclose ’s, gui lt or innocence.
-23- forth and saying that she wouldn’t die - - just rep eatedly over and over again.” Rickman attempted to calm Britt, and Baker left the room. Later, however, she confronted Rickmanand asked if he had murdered Deborah Groseclose. Rickman “described what they had done, and he was pretty upset that I had found out.” In fact, Rickman pro duced a hand gre nade an d began w aiving it a bout,

exc laiming “[A]nybody who turns me in or anybody who says anything about it, I’ll see to it that they die.” 4

Soon the reaf ter, Rickman shaved his head with Baker’s assistance, and they dr ove to Tulsa, Oklahoma. Baker noted that the decision to leave Memphis was Rickman’s, albe it she wanted to return home to Tulsa. In Tulsa, she and Rickma n stayed a t her mothe

r’s home . Within

a very short period of time, however, the police appea red at her mother’s home and arreste d Rickman. Baker c oncluded that she h ad been

trying to f

orget the events of the summer of

1977 ever since.

Ronald

Ralph Casper

testified that in 1977 he was a gunnery sergeant in the United States Marine Corps. He was assigned to the United Stat es Naval Air Station in Millington, Tennessee, and resided

at Frayser

Manor Apartments. While living at that apartment complex, he became acquainted with Pamela Baker, who in turn introduced h im to Ronald Rickman. Casper recalled that, on July 4, Rickma

n and Bake

r visi ted Casper’ s apartme nt, ostens ibly beca

use their apartment was not a ir conditioned. While visiting Casper’s apartment, Rickman and Baker watched television, exhibiting special interes t in news reports concerning the Groseclose murder . Upon watching these news repor ts, Rickman requested Casper’s permission to use the telephone. Casper grantedRickman pe rmission and obse rved him d

ial a tele phone num

ber fro m memory a

nd ask to speak with “Bill.”

Casper also saw Rickman and Baker on July 6 when theyvisited Casper’s apartment in or der to watch the 5 o’clock news, again exhibiting interest in the Groseclose story. Rickman again used Casper’s telephone, dialing a telephone number from memory a

nd asking t

o speak w ith “Bill.”

On July 7, Rickman and Baker visited Casper’s apartment once more but missed the evening news reports. Rickman inquired concerning the contents of the ne ws reports and then asked permission to use the telephone. Upon receiving Casper’s permission, Rickman dialed a telephone number from memo

ry and thi s time asked for “Phi l.” Subseq uently, he made a second tele

phone ca ll and asked to speak

with“Bill Groseclose.” After using the telephone, Rickman mentioned to Casper that he might be moving.

Finally, on July 8, Ri ckman and Baker b riefly vi sited Casp er’s a partment and confirmed

that they were leaving Memphis. Rickm an indi cated th at they we re going t

o North Carolina. Casper noticed on this occasion that Rickman had shaved his head.5 Key conceded t o the j ury tha t he was also convicted of agg ravated sexual battery in 19 93 a nd se nten ced to

eight years inca rcer ati on in t he Tenness ee Depart

ment of Corr ecti on.
-24- The State also r ead to the jury the transcript of Barton Wayne Mount’s direct testimony at the ap

pellants’ original t

rial in 197 8. As a

foundation for introducing Mount’s former testimony, the State presented the testimony of Sue Waddell, a deputy clerk for the Sh

elby Count

y Criminal Court. Waddell testified that she is responsible for mai ntaining court records and identified the transcript of Mount’s 1978 testimony. She further testified that court records contained a death certifi cate issued by t

he Minnes ota

Department of Health pertaining to Barton Wayne Mount. The dea th certificate indicated that, on November 15, 1993, Mount committed suicide. Wadde l l als o related to the jury on the basis of court records that, following hi s te stimony at the 1978 trial and well bef ore his death, on November 27, 1977, Mount pled guilty in the Shelby County Criminal Court to the

second d egree m urder of Debora h Grosec lose in re

turn for a sentence of te

n years.

At the 1978 tr

ial, Mounttestified that he was twenty years old, had been indicted for the first degree murder of Deborah G roseclose, and was currently incarc erated. He denied, however, receiving any promises or guarant ees fro m the State

in return for his te stimony. He

then rel ated to the jury that

he was enlisted in the United States Navy and had served in the Navy since March 28, 1976. Mount observed that Groseclose ha d been his N avy recruiter and that, prior to Deborah’ s murder, he saw Groseclose daily. According to Mount, he assisted Groseclos e in perf orming his duties as a rec

ruiter a nd also “s pent soci al time wit h hi m.” Mount similarly admitted that he had known Phillip Britt for nine years and was acquainted with Ronald Rickman. Finally, he confirmed that, in June 1977, he assisted Groseclose in negotiating a contra ct with Rickman and B ritt to kill DeborahGrosec lose. He

stated tha t he and G roseclo se intend

ed to live together foll owin g Deborah’s murder. Indeed, Groseclose intended to use a portion of the proc eeds from the ins ur ance policies on Deborah’s life to make improvements to his home and buy Mount a new truck.

BothGroseclose and Rickman declined to testifyon their own behalf. Rickman did, however, present the testimony of Louis Key. Key testified tha t he k new Barton Mount, having encountered him at theMemphis Correctional Center in 1978 and 1979. Key had been convicted of burglar y and wasservin g a sentenc e of ten to fifteen years incarce ration. 5 Mount wor

ked with Key performing custodial duties. According to Key, Mount informed hi m tha t he had killed DeborahGrosec lose at the main public

library in Memphis. Mount recounted to Key that he opened the trunk of the car in which Deborah was confine d and, because she was still alive, stabbed he r

.6 The tr ial court provide d the f

oll owing cont emporaneous i nstr ucti on to t

he jur y: W ith rega rd to th e te sti mony rega rdin g M r. M oun t’s feelin gs tow ard B ill Gro seclose and Deborah Groseclose, that was a s tat ement made someti me in 1978

or 197 9. Th at statem ent is b eing offer ed to you as a statement of wh at Mr. M ount’s mental feel ings or thought s were i n 1978 or 1979. Do you underst and?

. . . .

It has no beari ng on what hi s mental thought s were or

his feel ings were on June the 29 th , 1977. Do you underst and?

. . . .

Th is is cal led hi s t he n- ex i s t i ng s t at e o f mi nd at t he t i me he m ade the state me nt w ith regard to hi s fe eli ngs about Mr. Groseclose and Mrs. Grosecl ose. That’ s what his feel ings were o n the da y he m ade this s t at eme nt. Th at’s all it’s be ing o ffered to you to sho w. D o yo u un dersta nd th at?

. . . .

It’s not bei ng offer ed to s how what his feel ing were on June t he 29 th of 1977. Does every body unde rst and the dis ti ncti on?
-25- Mountexplained to Key that he was in love with Groseclose and hate d Deborah. 6 Mountasserted that Groseclose had “no kind of involvement” in Deborah’s murde r.

Grosec lose presented the testimon y of Lanette Thompson, Britt’s ex-wife and Rickman’s sister. She testifi ed that sh e was mar

ried to Br itt from August 22 , 1974, until June 2, 1977. She observed that

she had since maintained sporadic contact with Britt through their son, Je remy Michael

Britt, and

had last s poken wit

h Britt “fa

ce to fa ce” fiv e yearsprior to

trial. Sh e opined that her ex-husband was “not a very truthful per son.”

Grosec lose also

presented

the testimony of Gary King. King testified that he lived in Kingsport, Tennessee, and was currently a ser vice manager for Bill Gattis Chevrolet and Cadillac in Bristol, Tennessee. He stated that he knew Groseclose in the 1970s because Groseclose worked along with King a

t Looney’ s Chevrole

t and Cadillac in Kin gsport, Te nnessee as an a lignment technician for three or four years. King descr ibed G roseclose a s a “pra nkster.”In any ev ent, following his employment atLooney’ s, Grose closemoved to Memphis. Subsequently, in the midto late-1970s, Groseclose visited the dealership. King testified that the visit occurred shortly before King learned of Deborah Groseclose ’s murder. King noted that Groseclose n eve r attempt ed to borrow mo ney from

him during

the visit.

The evidence summarized above produced ve rdicts of guilt at the conclusion of the appella nts’ trial. Ag ain, Gro seclose now challenges his convictionof being an accessory before the f act to first de gree mur

der on the

grounds th at the tri al court failed to sever hi s trial fr

om that o f Rickman; the trial cou

rt admitte d into evidence Mount’s former testimony; the trial court excluded-26-

testimony by Gary King; and the evidence is insufficient to support his conviction. In challenging his conviction of first degree murder, Rickman j oins Groseclose in contesting the trial court’s admission at trial of Mount’s former testimony.
III. Analys is A. Severance We first address appellant Groseclose’s claim that the trial cour t erred in fa iling to

sever his trial from that of appellant Rickman. Groseclose specifically contends tha t a joint trial (1) effec tivelydenied him his rig ht to a speed y trial; (2) resulted in a violation of Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620 (1968); and (3) otherwise prevented a f air determination of Groseclose’s guilt or innocence due to the appellants’ mutually antagonistic defenses, the disparity in the weight of evidence addu ced by the State against each appellant, and appellant Rickman’s appearance

during the

joint tria l. The Stat

e dispute s that the t

rial cou rt abuse d its d iscreti on in denying Groseclose’s motion for severance.

As noted prev iously, the United States District Court for the Middle District of Tennessee reversed Groseclose’s conviction and sente nce on July 28, 1995, and ordered the issuance of a writ of habeas corpus or a new trial. The State’s ensuing and unsucce ssful appeals of the district court’s grant of relief concluded with the United States Supreme Court’s denial of the State’s petition for writ of certiorari on May 18, 1998. Within days, the State issued capias es for the arre sts of both appellants pursuant to the original indictment, and the Shelb y County Criminal Court scheduledtheir arraignments. Indeed, in orders dated June 3, 1998, the United States District Court noted that “the State has acted diligently in initiating the process for . . . retrial.” Thereafter, on June 22, 1998, the Shelby County Criminal Court appointed counsel for Groseclose and Rickman and set a new trial date of September 14, 1998.

On August 3, 1998, Groseclose filed a “Notice of Demand f or Speedy Trial” and a “Motion for Speedy Trial , or in the A lternati ve, Dismis sal.” In his Motion f

or Speed y Trial, Grosec lose asserte d that his right to a speedy trial had attached at the time of his arrest in July 1977 and that twen

ty-one ye ars had s ince pas sed. Acc ordingly, he argued that an y continuance of the scheduledtrial date of

September 14, 1998, would violate his right to a speedy trial and require the dismissal of the indictment in his case.

Simultaneo

usly with his Mot

i on f or Speedy Trial, Groseclose filed a motion requesting a severance

of his trial from that of appellant Rickman pursuant to the United States and Tennessee constitutions and Tenn. R. Crim. P. 14. Grosec lose’s gr ounds for severa nce incl uded in

essence potentia

l Bruton violations flowing from the State’s use at trial of Rickma n’s conf ession to the police, the appellants’ mutually antagonistic defenses, Groseclose’s conse quent desire to attack at trial Rick man’s ch aracte

r and cr edibility, and the di sparity in the weigh

t of the evidence

against each appellant.

Also on August 3, 1998, appellant Rickman filed a motion to sever his trial from that of Grosec lose purs uant to Tenn. R. Crim. P. 14. Rickman’s grounds for severance likewise included7 In its order, t he trial court act

ually noted a date of June 20, 19 98. How ever, the orders appointing counsel in the appel lant s’ c ases were fi led on J une 22, 1998.

8 On Sep tember 15 , 1998, Groseclose’s coun sel fil ed a “Repo rt on Discovery” in which they noted that they had complet ed the ir r eview of the St ate’ s fi le on Se ptember 2, 1998, and further noted that

“the y alr eady had copi es of

(con tinue d...)

-27- the appella

nts’ mutua

lly antag onistic de

fenses i n addition

to the poss ib ility that “evidence which would not b e admissib le as to one defendant [would be] a dmissible [as] to another,” Groseclose’s option at a joint trial to claim constitutional protections against self-i n crimination, and counsel’s belief that Rickman migh t be “required” to testify at a joint trial. Moreover, on August 27, 1998, Rickman filed a motion requesting a continuance of the Septembe

r 14, 1998 trial dat

e in this ca se and citin g his need

for a co ntinuanc e as an a dditional g

round for severa nce of de fendant s.
In support of Rickman’s motion for a continuance, his attorneys primaril y asserted that they were not prepared to proceed to trial on September 14. In this regard, counsel emphasized that neither a thorough investiga tion of the State’s allegations nor a thorough investigation of R ickman’s past for

mitigating

evidenc e critic al to the se ntencing phase of the capital proc eedin g s
was u ndertaken prior to Rickman’s first trial. Accordingly, notwithstanding counsel’s diligent efforts , their investigation in preparation for the retrial was still ongoing, and “a deter mination of needed expertsha[d] not been [made].”Counsel attac hed to the motion for a continuance the affida vit of the defense

investigator

detailing his progress in Rickman’s case. Additionally, counsel attached the affidavits of several defense a ttorneys experienced in capi tal liti gation, in which affida vits the attorneys asserted that capital proceedings entail a minimum of six months or one year pre-trial prepar

ation. Fina

lly, Rickma

n’s couns el profe ss ed to b e “astonished and amazed” that Groseclose’s counsel were prepa red to proceed to trial on September 14.

The trial court commenced hearings on the appellants’ motions on August 28, 1998. At the Augus t28 hearing, the trial court specifically addressed Rickman’ s motion for a continuance. Groseclose’s defense counselconfirmed that the y were p repare d to proceed to trial on th e origina lly scheduledtrial date, and

the State echoed this assurance. Neverth eless, the trial c ourt indic ated its inclination to grant Rickman’s motion for a continuance and took the motion under advisement. On the following Wednesday, September 2, the court further a ddres sed Groseclose’s motion for a speedy trial and both appellants’ motions for severance. The cour t ultimately denied the appe llants’ motions for severance and continued the trial date from September 14, 1998, until January 25, 1999, evidentl y conclud ing that the

latter da te was co nsistent w ith Grose close’s speedy tr ial right.

In its order continuing the trial date, the court emphasized that counsel had only been appointed on June 22, 7 leaving a pproxim ately th

ree months for counsel to prepare prior to the September

14 trial da

te. The c ourt fur

ther re marked t hat, notw ithstanding their op positio n to any continuance of the trial date, Groseclose’s defense counse l had indicated to the court on August 31 that they had not ye

t fully com

pleted their

review of the State’s files pursuant to the State’s “open file” policy. 8 The court concluded that a continuance wa s warranted8 (.. .continued)

most of t his materi al” prior

to September 2.
-28- due to the co mplex nature of this case both for the state and the def ense, due to the nature of the various motions in this case w hic h have not been decided by the Court, and finally due to the f act that this case has been reversed onc e for ineffective assistance of counsel and this court’s determination that neither the State of Tennessee nor Mr. Groseclose or Mr. Rickman could adequately be re presented under the time const

raints imp osed up to t

his point.
Subsequently, during the course of the appellants’ joint trial , Grose close

unsucce ssfully

renewed his motion for

severa nce on fo ur separ ate occasio ns. First, h

e renew ed his

m otion during the testimony of Phillip Michael Britt. At this time, Groseclose ar gued tha t Rickman’s defense counsel was unprepare d to cross-examine Britt and had elicited information damaging to Groseclose’s case. Second, Groseclose r enewed his motion for severance followin g the trial court’s decision to admit, over counsel’s objection, testimony by Ronald Casper that he had overheard Rickman attempting to telephone Groseclose following thediscovery of Deborah’s body. In essence, Groseclose asserted that the tria l court’s admission of the disputed testimony constituted

a Bruton violation. Lastly, he renewed his motion for severance both at the close of the State’s evidence and at the close of all the evidenc e.

Tenn. R. Crim. P. 8(c) authorizes joinder of defendants in the same indictment when eachdefenda

nt is char ged with a ccounta bility for each of fense charge d in the indictment, the several offenses charged were part of a commo n scheme or plan, o

r the off enses “[ w]ere s o closely connected

in respect to time, place, and occasion that it would be difficult to separa te proof of one charge from proof of the others.” The Advisory Commission Co mments to Rule 8 explain that “[p]ermissive joinder o f defendants

. . . is aimed at achieving improved judicial economy and efficiency.” See also State v. Lu nati , 665 S.W.2d 739, 746 (Tenn. Crim. App. 1983) . Similarly, the United States Supreme Court has remarked that “[j]oint trials ‘play a vital role in the criminal justice system.’ They promote eff iciency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’” Zafiro v. United States , 506 U.S. 534, 537, 113 S. Ct. 933, 937 (1993)(citation omitted).

In this case, both appellants were charged with the fir st degree murder of Deborah Groseclose, albeit only Groseclose was charged with the then separate offense of ac cessory before the fact to first degree murder. See, e.g.
, William E. Gr oseclose v. State , No. 02C01 -940 7-CR00145, 1995 Tenn. Crim. App. LEXI S 707, at **15-16 n.10 (Jackson, August 23, 1995) (observing that, at the time o f this offen se, “‘accessory before the fact’ constituted a separate and distinct criminal offense from that of first degree murder , although the punishmentwas the same”). In any event, the charged offenses were part of a comm

on scheme

or plan, and the proof of those offenses intertwined. Indeed, it is undisputed that the joinder of the appellants in the same indictment was-29-

permissib le under Te

nn. R. Crim. P. 8. Rathe

r, the pa rties disa gree ab out whether Tenn . R. Crim. P. 14, and those constitutional protections underlying the rule, required severance

.

As relev ant to the

instant ca se, Tenn . R. Crim. P. 1 4 (c) pr ovides: (1) I f the def

endant moves for a severance because an out-of-court statement of a code

fendant makes re ferenc e to the de

fendant but i s notadmissible against the defendant, the court shall determine whether the state intends to

offer th e stateme nt in evide

nce at tr ial. If so, the co

urt shall r equire the prosecuting attorney to elect one of the following cours es: (i) A joint trial atwhich the statement is not admitted into evidence or at which, if a dmitted, the statement would not constitute error; or (ii) A joint trial at which the statement is adm itte d into evidence only after all refere nces to the moving defendant have been deleted, if, as deleted, the confession will not prejudice the moving de f endant;

or (iii) Seve rance o f the moving defend ant. (2) The cou rt, on motion of the state or on motion of the defendant oth erthan under subdivision (c)(1), shall grant a severanc e of defendants if: (i) Before trial, it is deemed ne cessar y to prote ct a defendant’s right to a speedy trial or it is deemed appropriat e to p romote a fair determination of the guilt or innocence of one or more defendants; or (ii) During trial, with consent of the defen dant to be severed, it is deeme d necess ary to achieve a fai r determination of the guilt or innocence of one or more defenda nts.

The severance of defenda nts pursuant to Tenn. R. Crim. P. 14 is a matter entrusted to the sound discretion of the trial court. State v. Carruthers , 35 S.W.3d 516, 552 (Tenn. 2000), cert. denied , 533 U.S. 953, 121 S. Ct . 2600 (20 01); State v. H owell , 34 S.W.3d 484, 491 ( Tenn. Crim. App. 2000); State v. Ensley , 956 S.W.2 d 502, 508 (Tenn. Crim. App. 199 6). Thus, on appea l, this court will not re

verse the trial court’s ruling unl ess the de fendant was clea rly preju diced in h

is defense by being jo intly trie d with his co-defend ant. Carruthers , 35 S.W.3d at 552; Howell , 34 S.W.3d at 491; State v . Burton , 751 S.W.2 d 440, 447 (Tenn. Crim. App. 198 8). In oth er word s, “[t]he record

must demon strate th at ‘the d efenda nt was cle arly prejudic ed to the point that the trial-30-

court’s discretion ended and the granting of [a] sever ance became a judicial duty’ before an accused is entitled to a reversal of his conviction.” Burton , 751 S.W.2d at 447(citation omitted)(alteration in original). In Woodruf

f v. State , 51 S.W.2d 843, 845 (Tenn. 1932), our supreme court proffered the following oft-r

epeate d explana

tion:
It may have been to the interest of each [de f e ndant] that he be tried alone, but the orders of the court are molded to protect rights, and not merely the interests, of persons accused of crime. T he State, as well

as the persons accused, is entitled to ha ve its rights protected, and when several persons are charge d jointly with a single crime, we think the state is entitle d to have t

he fact o f gui lt determined and punishmentassesse d in a singl e trial, u nless to do

so would unfairly prejudic e the rights of the defenda nts. See also Carruthers , 35 S.W.3d at 552-55 3; State v. Coleman , 619 S.W.2d 112, 116 (Tenn. 1981); Statev. Deborah Graham , No. E1999-02248-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 241, at *36 (Knoxville, March 29, 2001), perm. to appeal denied , (Tenn. 2001).

The above sta

ndard ec hoes that articula ted by the Unit ed States Supreme C ourt in applying the f

ederal counterpart to Tenn. R. Crim. P. 14. According to the feder al standard,

severance of prope rly joined defenda nts requi res “a s erious r

isk that a j oint trial

would com

promise a specific trial right of one of the defendants, or prevent the jury from making a re liable judgment about guilt or innocence.” Zafiro , 506 U.S. at 539, 113 S. Ct. at 938. A defendant is not prejudiced merely because his chances for acquittal would have been be tter had he been tried separately. Id. at 540, 113 S. C t. at 938; see also, e.g., United States v. DeLeon , 187 F.3d 60, 63- 64 (1st Cir. 1999); United States v. Welch , 97 F.3d 142 , 147-148 (6th Cir. 1996); United States v. Lee , 743 F.2d 1240, 1248 (8th Cir. 1984). Due to the similarities betweenthe state and federal standards, this court has previous ly drawn up on feder al author ities i n assessing a trial court’s denial of a motion for

severance. See, e.g. , Carruthers , 35 S.W.3d at 553-55 4; Ensley , 956 S.W.2 d at 509; State v. Alcorn , 741 S.W.2d 135 , 140 (Te nn. Crim. A

pp. 1987) ; Delay v. State , 563 S.W.2d 905, 907 (Tenn. Cr im. App. 1977); State v. Clarence Mabry , No. 01C01 -9112-CC- 00369, 199 2 Tenn. Cr im. App. LEXIS 535, at **6-7 (

Nashville , June 19, 1992); State v . Melvin Al exander , No. 88-290-III, 1990 Tenn. Crim. App. LEXIS 217, at **10-12 (Nashville, March 15, 1990). With these standards in mind, we now turn to address Groseclose’s specific allega tions of prejudice.

i. Speedy Trial Groseclose’s first allegation of prejudic e is that the trial court’s denial of his motion for severa nce eff ectively violated his right to

a speedy trial. Specifically, Groseclose points to the trial court’s continua

nce of th e trial date at Rickm an’s re quest. The right to a speedy tr

ial is guaranteed by the Sixth

Amendment to the United States Constitution and applicable to the states th r ough the Due Process Clause of the Fourteenth Amendment. Barker v. Wingo , 407 U.S. 514, 515, 92 S. Ct. 2182 , 2184 (19 72); see also Klopfer v. North Carolina , 386 U.S. 213, 223-226, 87 S. Ct. 988, 993-995 (1967). Likewise, the right to a speedy trial is guaranteed by Article 1, Section 9-31-

of the Tennessee Constitution. State v. Simmons , 54 S.W.3d 755, 758 (Tenn. 2001). The Tennessee legislature has codified

this constitutional right at Tenn. Code Ann. § 40-14-101 (1997). Moreover, Tenn. R. Crim. P. 48(b) provides for the dismissal of an indictment “if there is unnecessary delay in bringing a defendant to trial.”

In Barker , 407 U.S. at 532, 92 S. Ct. at 2193, the United S tates S upreme Court identified thr ee interests of defendants that the speedy trial right was designed to protect: (1) preventing undue and oppressive pre-trial incarce ration; (2) minimizing the anxiety and concern that accompanies public accusation; and (3) limiting the possibility that long delays wi ll i mpair the accused’s ability to defend himself. See also State v. Utley , 956 S.W.2d 489, 492 (Tenn. 1997). The Courthas also noted, however, that “‘[t]he essential ingre dient [of the speedy trial right] is orde rly expedition and not mer e speed.’” United Sta tes v. Ewe

ll , 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966). In other words,

[a ] “speedy trial” . . . means a trial as soon after indictment as th e prosecution can, with reasonable di lig ence, prepare for it, without needles s, vexatious, or

oppressi ve delay , having in view, how ever, it s regulation and conduct by fixed rules of law, any delay created by the operation of which

rules doe s not in leg al conte m plation work prejudice to the constitutional right of the accused. Arrowsm ith v. State , 175 S.W. 5 45, 547 (T enn. 1915 ); State v. Jefferson , 938 S.W.2d 1, 33 (Tenn. Crim. App. 1996), overruled on other grounds by Moore v. I llinois , 434 U.S. 2 20, 231-2 32, 98 S. Ct. 458, 466 (1977).

Consistent with the a

bove ref lections, the Co urt in Barker articulated a test for determining when a defen dant has been denied his right to a speedy trial, which test requires the balancing of the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defe ndant ass erted hi s right to a speedy tr

ial; and (4) w heth er the defendant was prejudiced

by the delay. 407 U.S. at 530, 92 S. Ct. at 2192. Our supreme court ha s utilized

this test in asse ssin g pre-tr

ial delay regard less of wh

ether a defenda nt’s claim rested o n feder al or stat e protect ions. Statev. Bishop , 493 S.W.2 d 81, 83-8 4 (Tenn. 1973); see also Simmons , 54 S.W.3d at 758-759; State v. Baker , 614 S.W.2d 352, 353 (Tenn. 1981). I n applyi ng the tes t in this case, we notethat “[t]he balancing of the appropriate fa ctors identified above is more judicial art than science;

no calculu s exists to tell this court wit h precis ion the we

ights to a ssign the

various f actors, nor is it likely that such a ca

lculus could be devised.” Look v. Amaral , 725 F.2d 4, 8 (1st Cir. 1984).

Addressing fi rs t t he le ng th of th e d el ay, we no te th at it mu st qu al if y as “p resumptiv ely prejudic ial” even to

warrant a court’s consideration of the re maining factors in the Barker analy sis. Barker , 407 U.S. at

530, 92 S. Ct. at 2192; Simmons , 54 S.W.3d at 759; Utley , 956 S.W.2d at 494. Courts have re quired th at delay approac h one y ear in order to qualify

as “presumptively pr

ejudicial.” Dogg ett v. United States , 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 26 91 n.1 ( 1992); Simmons , 54-32-

S.W.3d at 759; Utley , 956 S.W.2d at 494 . If the delay c

rosses the threshold dividing ordinary fr om “presum ptively prejudicial” delay , a reviewing court “must then consider, as one f actor a mong
severa l, the extentto which the delay stre tches beyond the ba

re minimum needed to trigger judicial examination of the claim.” Dogg ett , 505 U .S. at 651-652, 112 S. Ct. at 2690-2691. “The

reasona bleness of the length of thedelay depends upon the c omplexity and nature of the case, but the presumption that delay has prejudiced the accused intensifies over time.” Simmons , 54 S.W.3d at 759

.

We emphasize in this case that Groseclose has confined his spee dy trial compl ain t to the context of the trial court’s denial of his motion for severance and the conseque nt continuance of his trial date from September 14, 1998, until January 25, 1999. In o th er word s, Grose close seemingly

concedes on appeal, and explicitly so concede d in the trial court, that the September

14 trial date was consistent with his right to a speedy trial. Even so, an assessment of the constitutional implications of the trial court’s continuance of the trial date requires a determination of the point at which Groseclose’s right to a speedy trial attached. Cf. Jefferson , 938 S .W.2d at 13 (“The first determination this Court must make is when the delay began and when the delay ended.”). In this regard, we disagreewith any suggestion by Groseclose in the trial court or in his brief on appeal that the relevant period of delay should be measured f rom the date of his arrest in 1977.

We acknowledge that, general ly s peaking, the right to a speedy trial does in fact attach at the time of a

defenda nt’s actu al arre st or at the

time of formal grand jury action, whichever

occurs first. Utley , 956 S.W.2d at 493. However, in State v. Adkins , 725 S.W.2d 660, 664 (Tenn. 1987), our supreme court declined to extend t he relevant

period of delay beyond trial court proceedings to appellate proceedings resulting in the revers al of a defendant’s conviction and the remand of his case for

a new trial. Cf. Allen v. Sta te , 505 S.W.2d 715, 719 (Tenn. 1974)(holding that a probation revocation proceeding is a continuation of the criminal prosec ution for purposes of constitutional speedy tr

ial prote ctions); State v. Joseph Hart , No. 02C01-9 9 02-CC-00075, 1999 Tenn. Crim. App. LEXIS 940, at *9 (Jackson, September 20, 1999)(holding that the constitutional rightto a speedy trial necessarily includes the sentencing phase of a criminal prosecution). Rather, the court suggested that delay in the appellate process implica tes constituti onal due p

rocess protect ions. Adkins , 725 S.W.2d at 664; see also State v. Billy Joe Bag gett , No. 01C01-9604-CC00160, 1997 Tenn. Crim. App. LEXIS 340, at **17-19 (Nashville, April 3, 1997).

T he District of Columbia Court of Appeals has provided a pa rticularly cog ent explanation of th e inte rplay of speedy trial and due pr ocess protections from the time a defendant commits a

crime thr ough ap pellate p roceed ings re sulting in

the reversal of a defendant’s c onviction: [I]f we were to graph the over all analysis of the per

iod from the t

ime of the offense to the revers al of the convicti on, we would drawa bellshapedcurve, as follow s: Any inordina te delay betwee n the off ense and arrest (or other accusation) sug gests possible prejudice to the defense -- solely a due pro cess concern at the beginning of the curve.9 In Pellet ier v. Warden , 627 A.2d 13 63, 1371 -1372 (Co nn. Ct. App. 1993), the Connecticut court s uggest ed

that the ti me between a defendant’s arr est and t he reversalof his f

irst convicti on might be considered in det ermini ng whether he was granted a spee dy retri al i f the t rial error neces sit ating t he retri al occurre d for t he purpos e of del ay. See also Ku la , 579 N.W.2d at 546-547. Since the a ppell ant makes no such all egati on in t his case, we need nei ther adopt nor rej ect the Connec ti cut c ourt’ s sugge sti on.
-33-

Once t he defendant has been formally accused, however, there ar e additional concer

ns -- fina ncial impa

ct, public obloquy , att en dant anxiety -- requ iring the additio n of spee dy t r i al protections that empha size the length o f delay , as such, as well a s demonstr able prejudice. After co nviction, these pr etrial c oncerns , while sti ll pres ent, mu st be said to ebb as a constitutional matter, since the conviction is presumptively valid. Because the burden to show error
now rests on the defendant, due process alone re mains to protect the defendant at the end of the curve, in the event tha t the time ta

ken to

revers e on appe al has je opardize d the fai rness of a retria l. United States v. Alston , 412 A.2d 351, 359 ( D.C. Ct. App . 1980); see also, e.g. , Harrison v. United States , 392 U.S. 219, 221 n.4, 88 S. Ct. 2008, 2009 n.4 (1968); Ewell , 383 U.S. a t 120-121, 86 S. Ct. at 776-77 7; United Sta tes v. Smith , 94 F.3d 2 04, 206-2 07 (6th Cir. 199 6); Burke tt v. Cunningham , 826 F.2d 1208, 1220-1225 (3d Cir. 1987); Sands v. Cunningham , 617 F. Supp. 1551, 1566-1567 (D.N.H. 1985); Lahr v. State , 615 N.E.2 d 150, 151- 152 (I nd. Ct. App . 1993); State v. Bessey , 328 A.2d 8 07, 817-8 18 (Me. 19 74); Icgore n v. State , 653 A.2d 972, 978 (Md. Ct. Spec. App. 1995); Commonwea

lth v. Latimore , 667 N.E.2d 818, 822-823 (Mass. 1996); Duplantisv. State , 708 So .2d 1327, 1334

(Miss. 199 8); State v. K ula , 579 N.W.2d

541, 546- 547 (Neb . 1998); P eople v

. Cousart , 444 N.E.2d 971, 973 (N.Y. 1982)

. Significantly, Groseclose does not raise in this appeal a due pro cess cha

llenge to any appe llate delay, nor, apparently, did he raise any such cha llenge in his fede ral habe as corpu s proceedings.

That having been said , we do not mean to suggest that a defendant’s conviction of

a charged offense permane ntly extinguishes his constitutional right to a speedy trial for that offense. On the contr

ary, in State v. H arris , 978 S.W.2d 109, 113 (Tenn. Crim. App. 1997), perm. to appeal denied , (Tenn. 1998), this court indicated that a defendant’s right to a speedy trial attaches anew on the date on which his original conviction is reversed following a successful appea l or collateral attack. Cf., e.g.
, Nickers on v. State , 629 So.2d 60, 61-63 (Ala. Crim. App. 1993) ; Lahr , 615 N.E.2d at 151-152; Icgore

n , 653 A.2d at 978; Duplantis , 708 So.2d at 1334 ; Cousart , 444 N.E.2d at 973 n.*

. 9 Thus, the rele

vant per iod of del ay in this c ase bega n on July 28, 1995, t

he date on which the United States District Courtfor t he Middle District of Tennessee reversed Gr oseclose’s conviction and sentence, and concluded on January 25, 1999, the date on which the voir dire of prospective jurors commenced

in Groseclose’s retrial

. Cf., e. g. , United States v. Richmond , 735 F.2d 208, 211 ( 6th Cir. 1984)(observing that, for purposes of the federal Speedy Trial Act, a jury trial commenc es at voir dire unless the record reflects an intent by the trial court to “‘evade the Act’ s spirit by commencing voir dire within the prescribed time limits and then taki ng a pr

olonge d reces s before-34-

the jury is sworn and testimony is begun’”). I

n other words, the relevant period of delay amounts to approximately three-a nd-one-half y ears, a

period of

delay suffic ient to trigger this court’s consideration of the remaining factors in Barker

. Cf., e .g. , Simmons , 54 S.W.3d at 759. Indeed, our

assessmen tof the reasonableness of this delay cannot be divorced from our consideration o f th e remaining fact

ors.

Our supreme court has p reviously listed four ca tegories into which reasons for a delay might fall for purposes of a defenda nt’s spee dy t

rial rig ht: (1) inten

tional delay

by t he State t o gai n a tactical advantage over the defense or delay

designed to harass the defendant; (2) de lay resulting from bureaucratic indifferenc e or negligence; (3) delay nec essary to the fair and effective prosecution of the case; and (4) delay caused, or acquiesced in, by the defendant. State v. Wood , 924 S.W.2d 342, 346-347 (Tenn. 199 6); cf. State v. Wallace , 648 S.W.2d 264, 269 (Tenn. Crim. App. 1980). Oursupreme court also explained the manner in which a court should weig h the different categories of delay

in conducting a Barker

analy sis: The first type, intentional delay , is weighed heavily against the State. The se cond type, neg

ligent delay , is also weighed against the Stat e altho ugh not as hea

vily as delibe rate delay . The thir

d ty pe of del ay

is, by definition, justifiable and is not weighed against either pa rty. The fourth type of del ay, which is caused or acquiesced in by the defenda nt, is weig

hed ag ainst the d

efenda nt. W ood
, 924 S.W.2d at 347. We note that, “[b]ecause ‘the prosecutor and the court have a n affirmative constituti onal oblig ation totry the defe ndant in a timely manner . . . the burden is on the prosecution to explain the cause of the pre-trial delay .’” United States v. Brown , 169 F.3d 344, 349 (6th Cir . 1999)(a

lteratio n in orig inal); see also Barker , 407 U.S. a t 531, 92 S. Ct . at 219 2 (characterizingthe secondfactor of the speedy trial analysis as the “

reason the government assigns to justify the delay

”); Hakeem v. Bey

er , 990 F.2d 750, 770 (3dCir. 1993)(noting that, “once a delay is alleged and rises to the point wher e a Barker inquiry has commenced, the state . . . bears the burden to justify

the dela y” ); Terry v. Duckw orth , 715 F.2d1217, 1220 (7th Cir. 1983)(observing that, “[a]bsent any

direct evidence on this point, we cannot presume either a deliberate attempt on the part of

the state to hamper the defense or a valid justification for the delay ”); Morris v. Wyrick , 516 F.2d 1387, 1390 (8th

Cir. 1975)(observing that, when the record doe s not reflect any reason for de la y, this factor will be weighed aga inst the State); State v. Nance , 521 S.W.2d 814, 817-818 (Tenn. 1975)(noting that, “in speedy tria l issues, the burden of proof may well rest upon the State on appeal to explain or justify a delay ”).

In this cas e, most o f the delay, from July 28, 1995, until May 18, 1998, was occasioned

by the State’s decision to appeal the district court’s order granting Groseclose relief. In Harris , 978 S.W.2d at

113, we analogized

delay occasioned by the State’s appeal of a tria l court’s grant of post-conviction relief

to delay oc casione d by a State ’s interl ocutory a ppeal and cited wi

th appro val t he following observation by the United States Supreme Court in United States v. Loud Hawk , 474 U.S. 302, 315-316, 106 S. Ct. 648, 656 (1986)(citations omitted):-35- [I]t hardly ne

ed be sai d that an . . . appea l by th e G overnment ordinar ily is a valid reason that justifies delay. In assessing th e purpose and reasonableness of such an appea l, courts may consider several factors. These include t he strength of the Government’s position on the ap peal ed issue, the importance of the issue in the posture of the case, and - - in s ome cases - - the seriousness of the crime. For examp le, a del ay resu lting fr om an appeal would weigh heavily against th e Gover nment if th

e issue we re clea rly tangential or frivolou s. Moreove

r, the ch arged of

fense us ually must b e suffic iently serious to justify r

estr aints t

hat may be imposed on the defendant pending th

e outcome

of the ap peal. See also, e.g.
, People v. Crane , 743 N.E. 2d 555, 563 -564 (Ill. 2001); People v. James , 460 N.W.2d 557 (Mich. 1990).

The pivotal iss ue on app eal in thiscase was ineffe ctive as sistance of counse

l. As in Harri s , 978 S.W.2d at 114, “the importance of the issue in the posture of the case was profound: unless it successfully appealed, the State lost a conviction of . . . first-degree murder and faced the unhappy prospect of having to try the defendant a sec ond time. Lik ewise, the seriousness of the crim e was extreme.” In fact, we c an conceive of no more serious crime than that c ommitted b y Groseclose. As to the strength of the State’s position on appeal, we need look no farther than Judge Suhrheinrich’s vigorous dissent from the decision by the United Stat es Cou rt of Appeals for the SixthCircuit affirming the district court’s grant of habeas corpus relief. Grosec lose v. Bell , 130 F.3d 1161, 1171-117 9 (6th

Cir. 1997). In short, the delay from July 28, 1995, until May 18, 1998, was fully justified.

T he remain ing delay in Groseclose’s case spanned appr oximately eight months, from May 18, 1998, until January 25, 1999 . While “[i]t is impossible to assign ‘ fault’ f

or . . . delay s with mathematical precision,” United States v. Jones , 524 F.2d834, 850 (D.C. Cir. 1975), the record reflec ts that one month of this delay was c onsumed by the State’s issuance of capiase s, the trial court’s arraignment

of the appe

llants, and the cour

t’s sear ch for a nd appoin

tment of c ounsel. Nothing in the record suggests, and the a ppellant does not allege, any intentiona

l delay by t he State during these preliminary pr oceedings or, alternatively , bureaucratic indifference or negligence. Moreover, to the extent any delay in arraigning the appellants or appointin g couns el was at tributabl e to the scheduling demands of the court’s docket, this mo re “neutral” reason for the de lay weig hs minimally

agains t the State

and in fa vor of Gr oseclose ’s speed

y tr ial claim

.

A review o f the re cord als o revea ls , and Gros eclose effectively concedes, that the three- month

delay following

the appointment of c ounsel and prior to the original trial date resulted from bo th th e S ta te ’s an d G ro se cl os e’ s d il ig en t e ffor ts to pi ec e t og et he r o nc e m or e a n a lm os t t we nt ytwo-y ear-ol d capital case and the tri al cou rt’s need to resolve the approximately thirty pre-trial motions filed by counsel, some of whi ch motions required evidentiary hearings and the entry

of-36-

written findings of fact and conclusions of law. I n this regard, we

note the following remarks of the trial court in its April 22, 1999 Supplemental Order, granting Grosecl ose additional funds for investig ative se

rvices: The case of State of T ennesse e v. William Grosec lose

was a complex and hotly contested trial in which the State of Tennessee was seeking the De at h P en al ty. The Defense was initially provided with a list of

over one hundred witness[es], many of whom had to be found after

a twenty-two y

ear period. Additiona lly, t here were numerous new witnesses that wer

e found in various s tates ac

ross the country. The

re
was a large number of pre-trial motions that were filed pre-trial and arguments were heard. The tria l . . . laste d three a

nd a half weeks.

Similarly, the trial

court’s four-mo nt h continuance of the joint proceedings at Rickman’s request

was fully justifiable, and we will not weigh t he delay agains t either p arty

. See, e.g. , State v. Wilcoxson , 772 S.W.2 d 33, 36 (T enn. 1989 ); State v. Moore , 713 S.W.2 d 670, 675 (Tenn. Crim. App. 1985); cf. United Sta te s v. Davenpor t , 935 F.2d 12 23, 1239- 1240 (11th Cir. 1991); United States v. Becker , 585 F.2d 703, 708 (4th Cir. 1978) ; United States v. Noriega , 746 F. Supp. 1548, 1558-1562 (S.D. Fla. 1990). Like a trial court’s g rant or denial of a motion for severance under

Tenn. R. Crim. P. 14, a trial court’s grant or denial of a motion for a continuanc e rests within its sound discretion and does not constitute an abuse of that discretion absent prejudice to the complaining party. State v. Goodman , 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982). Not only, as we subsequently conclude, has th e appellant failed to make any affirmative showing of prejudice stemming from the trial court’s four-mo nth contin uance, but also the recor

d supportsthe trial court’s determination that a continuance was nece ssary to assure the right of Groseclose’s codefendant to the effective assistance of counsel. Notwith standing Groseclose’s motion for severance and the State’s opposition thereto, the record is devoid of any evidence or sugges tion that th

e State pursued its right to a joint trial of the appellants in bad faith, i.e., for the purpose of delay in g Groseclose’s trial, or

that its pursuit of a joint trial was otherwise unnecessary to a fair and e ffective prosecution of the case.

Having concluded that the reasonsfor the d

elay do not weigh ma

terially in favor of Groseclose’s speedy trial claim, we note that a defendant’s asse rtion of his rightto aspeedy trial “is entitled to strong weight in favor of the defendant, while failure to assert the rig ht [to a speedy

trial] ordinar ily will make

it diffic ult to p rove that the right has been denied.” Simmons , 54 S.W.3d at 760. In this ca se, Gros eclose a sserted his right to a speedy trial on August 3, 1998, but, as noted previously, limited hi s dem and to the Septembe

r 14, 1998 trial dat

e, there by indica ting his satisfaction with the pace of the litigation through that date. In summary , the timing of Groseclose’s assertion of his speedy trial rig ht underscores the focus of his complaint upon the four-month delay10 During the pendency of the St ate’s appeals bef o re the Unit ed Sta tes Supreme Court , bot h Grosecl ose and Rickman fil ed motions in t he Unit ed Sta tes Dist

ric t Court

reques ti ng the issu anc e of th e w rit of ha bea s corp us in their

cases due to the failure by the State to tr y the a ppell ants withi n 120 days of the i ssuance of t he mandate by the United Stat es Court

of Appeal s for

the Si xth Ci rcui t af

fir ming the district court’s reve rsal of their con victions an d senten ces. In part icul ar, the a ppell ants rel ied upon the St ate’ s fa il ure t o reques t a s tay of the mand ate pending the Sup reme C ourt’s resol uti on of it s peti tion for writ of c erti orari. Apparently, nei ther appellant clai med a viol ati on of hi s ri ght t o a spee dy trial, and, i ndeed, t

he dis tri ct c ou rt not

ed in i ts order de nying the appel lant s’ moti ons t hat t he appel lant s’ r ight

to a speedy t ria l would not

be impli cate d were t hey to be ret rie d.

11 We emphasiz e tha t, even as suming t hat Mount woul d have provi ded excul pator y tes ti mony, his sui cide occurred prior

to the per iod of delay at iss ue in thi s case.

-37- following th e o ri gi na l t ri al da te wh il e s im ul ta ne ou sl y u ndercut t ing the strength of his speedy trial complaint as a whole. 10

Finally , we a ddress whether Groseclose was prejudiced by the three-and-one-halfyear delay preceding his retrial. In light of the confusion evident in Grosec lose’s brief on appeal,

we must emphasize that, while the joinder of defendants may resul t in pre-trial delay that in turn violates a defendant’s right to a speedy trial, not all prejudice stemming from the joinder of defenda nts is thereb y releva

nt to the sp eedy tri al claim. For examp le, wheth er Grose clo se “was forced to trial with a Co-Defendant who had a different defense” is irrelevant to the interests that the speedy trial right was designed to protect, Barker , 407 U.S. a t 532, 92 S. Ct. at 2193 , albeit mu tually antagoni stic defenses may other wis e support severance of defenda nts, see, e.g. , United States v. Pena-Lora , 225 F.3d 17, 34 (1st Cir. 2000) ; United States v. Tootick , 952 F.2d 1078, 1 081 (9th Cir. 1991); United States v. Guerrero , 938 F.2d 72 5, 727-72 8 (7th Cir. 1991).

In short, Groseclose does not allege any prejudice stemming from the three-and-onehalf-year delay itself as opposed to the joinder of defendants. For example, he does not contend that his defense was impaired by the delay beca use any witness w as unava

ilable or unable accura tely to recall the events in questio n or beca use any exculpato

ry evidenc e was lost

or unava ilable

. 11 Barker
, 407 U.S. at 532, 92 S. Ct. at 2193. Of course,

prejudice to a defendant caused by delay in bringing him to trial is not confinedto the possib le preju dice to hi s defens e inthose pro ceeding s. Inordina te delay . . . “may ‘se

rio usly in terfere with the defendant’s liberty, whether

he is free on bail or

not, and . . . may disr

upt his employ ment, drain his financi al resou rces, curtail hisassocia

tions, subject him to public obloquy, and create anxiety i n him, his family and his friends.’ These factors are more s erious for some than for others, but t

hey are inevitab ly prese

nt in ever y case to some exte

nt, for every defendant

will either be incarcerated pending tr

ial or on b ail subject to substantial restrictions on his liberty.”-38-

Moore v. Arizona , 414 U.S. 25, 26-27, 94 S. Ct. 188, 190 ( 19 73)(footnote and citation

om itted)(alteration in original). In Groseclose’s case, however , to ascribe prejudice of the typ e described above so lely to the

three- and-one -half-y ear del ay at issue is to ignore the preceding eighteen years. Moreover, without a more specific showingby Groseclose, any additional prejudice occasioned

by the three-and-one-half-yea r delay does not

weigh heavily in favor of his speedy trial claim.

For

example, Groseclose does not contend that he was subjected to any g reater degree of anxiety than that normally attendant to a retrial in which the State is charging first degree murder and seeking the death penalty. Cf. Hakeem , 990 F.2d at 762 (observing that “a defendant must show that his anxiety extended beyond that which ‘is inevitable in a criminal case’” ); Morris
, 516 F.2d at 1391 (observing that “[a]nxiety and conc ern of the accused are undoubtedly present to some degree in every c ase”) ; United States v. S hepherd , 511 F.2d 119, 123 (5th Cir. 1975) (recognizing that prejudice from

anxiety requires “more than the normal anxiety that accompanies a trial”) . S im il ar ly, altho ugh Grosec lose was incarce rated du ring the th

ree-a nd-one- half-ye ar dela

y, “cre dit fo r time served ‘mitigates the potential oppressive effects of . . . incarce ration.’” Hakeem , 990 F.2d at762 (citation omitted). In this ca se, Gros eclose i s entitled to “credit on [his] sentence for any per iod of time for which [he] w as committ ed and he ld in the . . . county jail . . . pending arraignment and trial

. . . [and] for

the time served in the . . . penitentiary subsequent to any conviction arising out of the original o ffense

for which the defendant

was trie d.” Tenn . Code Ann . § 40-23- 101(c) ( 1997); see also Marsh v. Henderson , 424 S.W.2d 193, 195 (Tenn. 1 968); Stubbs v. Sta te , 393 S.W.2d 150, 154 (Tenn. 1965)

.

Co nc ed ed ly, a defendant need not necessarily

present affirmative proof of prejudice in order to establish a speedy trial claim. Simmons , 54 S.W.3d at 760 (citi ng Dogg ett , 505 U.S. at 655-656, 112 S. Ct. at 2692-2693). Neverth eless, presumptive prejudice cannot alone carry a speedy trial claim

without regard to the other Barker criteria. Doggett , 505 U.S. at 655-656, 112 S. Ct. at 2693. In other

words, “ such pre

judice ‘ unenhanced by ta

ngible impairment of the defense function and unsupported by a

better showing on the othe r facto rs than wa s made he

re, doesnot alone make outa deprivation of

the right to . . . speedy trial.’” United States v. Jackson , 542 F.2d 40 3, 409 (7th Cir. 1976)(citing United States v. De Tienne , 468 F.2d 15 1, 158 (7th Cir. 1972) ); see also Wilson v. Mitchell , 250 F.3d 388 , 394-396 (6th Cir. 2001)(noting that the reason for delay determines the amount of proof that a p etitioner must proffer in order to show prejudice) ; Cowart v. Hargett , 16 F.3d 642, 647 ( 5th Cir. 1994)(noting that, since the first three factors of the Barker analysis did not weigh heavil y against the State, the defendant was required to make a n affirmative showing of prejudice).

In summary , the leng th of the d

elay in this case cr ossed well bey ond the thr eshold dividing or di na ry f

ro m “ pr es um pt iv el y pr ej ud ic ia l” de la y. Dogg ett , 505 U.S. at 651-65 2, 112 S. Ct. at 2690-269 1. Howev er, the d elay was almos t entirel

y, i f not fully , justifie d, and, in deed, Gr oseclose

was apparently untr

oubled by any

deprivation of his right to a speedy trial until the final four months of the rele vant per iod. Unde

r these circumst ances, Groseclose was required to present af firmative-39-

proof that he was prejudiced by the delay. I

n the absence of

such proo f, we ca

nnot conc lude that

a deprivation of Groseclose’s right to a speedy trial required the severance of his case from that of Rickman.

ii. Bruton

Groseclose’s second allegation of prejudice is that the trial court allowed the introduction at the appellants’ joint trial of Ronald C asper’ s testimony in violatio n of his rig

ht to

co nfrontation and, more specifically, the United States Supreme Court’s decision i n Bruton v. Unite d States , 391 U.S. 123, 88 S. Ct. 1620 (1968). Again, Casper testified that, following the discovery of Deborah’s body by the police, he overheard appellant Rickman make se veral telephonecalls in which he asked

to speak wi th “Bill” o

r “Bill Gr oseclose .” The tr

ial cour t permitte d the State

to introduce this testimony against Rickman pursuant to Tenn. R. Evid. 803(1.2), as an admission of

a party-opponent. However, dueto Rickman’s exercise of his constitutional privilege against selfincrimination, the trial court provided to the jury the fo llowing limiting instruction both during Casper’s testimony and at the conclusion of Casper’s testimony:

Members of the jury, the co urt inst ructs you that this st

atement i s bei ng offered to you with regard to these phone ca lls or attempted phone ca lls. It’s b eing off ered to y ou, and you are onl y allowed to consider it as it applies to the guilt or innocen ce of Ron Rickman. You cannot us e this info rmatio n, i n any regard, as to the guilt or innocence of Bill Groseclose. The trial cou

rt reite rated in its main jur

y instruc tions that “[a]ny evidence which was limited to a particular defendant should not be considered by you as to any other defendant.” Notwithstanding these instructions, the court conceded to counse l its doubt a

bout its de cision to

allow the introduction of Casper’s testimony into evidence.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right “to b e confr onted with

the witne sses aga

inst him,” which guarantee binds the states through the Fourteenth Amendment. Pointer v. Texas , 380 U.S. 400, 403, 8 5 S. Ct. 1065, 1068 (1965). Moreover, Article I, Section 9 of the Tennessee Constitution affords an accused the right “to meet the witnesses face to face.” State v. W illiams , 913 S.W.2d 462, 465 (Tenn. 1996); Statev. Kennedy , 7 S.W.3d 58 , 64 (Ten n. Crim. App. 1999). Notably, although the two provisions

are no t identical, our supreme court has previously adopted the standards of the United States Supreme Co urt un der the Confrontation Clause of the Sixth Amendment to the United States Constitution in determining whether there has been a violation of an accused’s right to confrontation under Article I, Section 9 of the Tennessee Constitution. State v. Middlebrooks
, 840 S.W.2d 317, 332 (Tenn. 1 992); Statev. Causby , 706 S.W.2d 628, 631 (Tenn. 1986); State v. Armes , 607 S.W.2d 234, 236 (Tenn. 1980)

. But cf. State v. Deuter , 839 S.W.2d 391, 396 (Tenn. 1992)(acknowledging that, in other states, the “face-to-face ” language has been h eld to impose a higher right than that found in the fe deral c onstitution but noting t

hat “the extent to which our

consti tuti on exceeds the protection provided by the federal constitution need not be decided in this ca se”).-40- Certainly, whether derived from th e federal or state constitution, t he right of an accused in a criminal tria

l to confr ont any witness ag ainst him “‘is an essential and fundamental requirement

for t he kind of

fair tri al which i s this coun try ’s constit

utional g oal’” in asmuch a s it promotes reliability by

“(1) insur[ing ] that the w itness will give hisstatemen

ts under oa

th - - thus impressing him with the seriousness of the matter and

guarding agains tthe lie

by the possibility

of a penal ty for perj ury; (2) fo rc[i ng] the witness to submit

to cross-examination, the ‘greatest legal e ngine

ever inve nted for t he di scov ery

of tr uth’; [and] ( 3) pe rmit[ting] the jury that is to decide the defendant’s fate to observe the de meanor of the witness making his statement, thus aiding the jury in assessing his credibility.” Lee v. Ill inois , 476 U .S. 5 30, 540, 10 6 S. Ct. 2056, 2062 (198 6); see also State v. Hughes , 713 S.W.2d 58, 60 (Te

nn. 1986) ; Kennedy , 7 S.W.3d at 64. Nevertheless, competing interests, including every State’s “strong interest in effective law e nforcement, and in th e develo pment and

precise formulation of the rules of evidence a pplicabl e in criminal procee din gs,” may warrant dispensing withconfrontation at trial. Ohio v. Rob erts , 448 U.S. 5 6, 64, 100 S. Ct. 2531, 25 38 (1980) ; see also Kennedy , 7 S.W.3d at 64-65.

Of particular rele

vance to the instant case is the impact of the const itutional r ight to confrontation upon evidentiary r u les govern ing the admission of hearsay statements. Clearly, the constitutional right

to confrontation does not bar th e admissio n again st a crimi nally accuse d of all statemen ts definedas hearsay

by feder al or state rules. Mary

land v. Cr aig , 497 U.S. 836, 847-848, 110 S. Ct. 3157, 3164-616 5 (1990 ) ; State v. Henderson , 554 S.W.2d 117, 118-119 (Tenn. 1977). Indeed, the admission of an ac cused’s own hear say statemen ts cannot logica lly implicate his right to confrontation. Also, the admission of another ’s hear say

statemen ts gene rally does not im

plicate

an accused’ s right to confr ontation if

the decl arant te stifies a t trial an d is subject to crossexamination. California v. Green , 399 U.S. 14 9,158-164, 90 S. Ct. 19 30, 1935- 1938 (197 0); see also, e.g. , Richards on v. Mars h , 481 U.S. 200, 206, 107 S . Ct . 1702, 1707 (1987). Even when a declarant does not testify at trial, “certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection’” of confrontation. Roberts , 448 U.S. a t 66, 100 S. Ct . at 2539; see also, e. g. , Lilly v. Virgini a , 527 U.S. 116, 126, 119 S. Ct. 1887, 1894-1895 (1999)(plurality opinion); White v. I llinois , 502 U.S. 346, 356-357, 112 S. Ct. 736, 743 (1992 ); Bourjaily v. United States , 483 U.S. 171, 182- 184 , 107 S. Ct. 2775, 27 82-2783 ( 1987); Causby , 706 S.W.2 d at 631; State v. Alley , 968 S.W.2d 314, 317 (Ten

n. Crim. Ap

p. 1997). Otherwi se, the e xtrajudicial s tatem ents of a non-testifying declarant must bear

their own “‘particularized

guarantees of trustworthiness’ such that adversar ial testing would

be expected to add

little, if anything, to the statements’ reliability.” Lilly , 527 U.S. at 125, 119 S. Ct. at 1894 (plurali ty opinion) ; see also Roberts , 448 U.S. at 66, 100 S. Ct. at 2539; see gene rally Kennedy , 7 S.W.3d at 64-66, and case s cited the rein

.-41- Co urts have b een esp ecial ly troubl ed by the i nterp lay of the const itut ional righ t t o confrontation with a specific category of hearsay

evidence comprising accomplices’ c onf ess ions that inculpat e a crimina

l d efe ndant. I

n partic ular, the

United Sta

tes Supre me Court ha s observed that, due to an acc omplice’ s strong motivation

to exonera

te himself and incr iminate hi s companion, the accomplice’s extra

judic ial confession is even less reliable than ordinary hearsay evidence and, therefore, uniquely threatens the interests protected by

a defendant’s right to co nfronta ti on when introducedagains t the def endant w ithout the b enefit of cross-examination. Lee , 476 U.S. at 541, 106 S. Ct. at 2062. More recently and more explicitly, a plurality of the Court categorically concluded that “accomplices’ confessions that inculpate a cr iminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in ou r Co nfronta

tion Clause jurisprudence,” albeit the Court conceded th at s uch hearsay statements may possess their own particularized

guarant ees of tr ustworthiness. Lilly , 527 U.S. at 134 & 134 n.5, 119 S. Ct. at 1899 & 1899 n.5.

The Court’s ruling in Bruton , 391 U.S . at 137, 88 S. Ct. at 1628 , upon which appellant Grosec lose reli es i n this case, “illustrates the extent of the Court’s concern that the admission of [accomplices’ extrajudicial confessions that inculpate a criminal defend ant] will dist ort the truthfinding process,” Lee , 476 U.S. at 542, 106 S. Ct. at 2063. I n Bruton , 391 U.S. at 137, 88 S. Ct. at 1628, the Court rejected even the notion that , i n a joint trial, any encroachment on the nondeclarant’s right to confrontation canbe avoided by the trial court’s instruction to the jury that it should disregard the confessor’s extrajudicial statement inculpating the nondeclar ant in determi ning the latte

r’s guilt or innocence. While acknowledging the gener al presumption that a jury

can a nd will c omply with a trial court’s instructions limiting the jury’s consideration of evidence adduced at trial, the Court concludedthat the risk of noncompliance was too great in the context of “powerfully incriminating extrajudicial statements of acodefendant, who stands accused side-byside with the defendant.” Id. at 135-136, 88 S. Ct. at 1627-1628.

In invoking Bruton in this case, Groseclose seeks to equate Caspe r’s account to the jury of Rickman’s attempts to telephone Groseclose with the hearsay e vidence at issue in Bruton

. However, as noted by the State, Rickman ’s statem ents were not “confessions” made under circumstances i n which he possessed a strong motivation

to exonera

te himself

and incr iminate Groseclose. Cf., e.g.
, Vincent v. Parke , 942 F.2d 98 9, 991 (6th Cir. 1991). More importantly, perhaps , Rickman’s statements did not on their face incrimina t e Groseclose. The United States Supreme Court has e

xpressly decline d to apply Bruton even to a n accomp lice’s c onfessio n when it didnot incriminate the defendant without refer ence to other, ad

missible evidence. Marsh , 481 U.S. at 208-211, 107 S. Ct. at 1707-1709; see also, e.g. , United States v. Rahseparian , 231 F.3d 1267, 1277-1278 (10th

Cir. 2000), cert. denied , 532 U.S. 974, 121 S. Ct. 16 09 (2001) ; United States v. Lage , 183 F.3d 374, 38 6 (5th Cir. 1999) ; Vincent , 942 F.2d 989 , 991; State v. Person , 781 S.W.2d 868, 872-873 (Tenn. Crim. App. 1989); State v. Thomas J. Faulkner, Jr. , No. E2000-00309-CCAR3-CD, 2001 Tenn. Crim. App. LEXIS 293, at **34-35 (Knoxville, April 17, 2001), perm. to appeal denied , (Tenn. 2001); cf. Gray v. Maryland , 523 U.S. 185, 192, 118 S. Ct. 1151, 1155 (1998).12 The Tenn essee Ru les of Ev idence were o nly ado pted in 1 990 , well after the ap pellants’ offen ses.

Nevertheles s, t

he Comp iler ’s Notes s tate : The se rules, which were contingent upon approval by both hous es of the general

asse mbly, were ra ti fie d and approve d i n 198 9 H ous e Re solutio n 10 and Sen ate Resol uti on 4.

The Januar y 23, 1989 or der adopt ing these rules provide d that they t ak e effect January 1, 1990 and be applica ble to al l case s tr ied from and after that date. The order also provi ded that the rules “ gov ern e vide nce ruling s in all tri al c ourts of t he
state ex cep t as oth erw ise pro vide d by statute o r rules o f this co urt.” Consis tent

with the Jan uary 2 3, 198 9 ord er, the transcript of th e appe llants’ tri al refl ects the t ria l cour t’s appli cati on of the rule s of e vidence as t hey exi ste d at t

he ti me of the appellan ts’ trial. For purpo ses of sub seque nt analysis, we note that neither

appellant

asser ts anywhere in hi s brief that si gnifi cant changes in the la w of evide nce bet ween the t ime of his offense and t

he time of trial implicat ed ex post fac to p rovisions o f the Un ited States or T enne ssee con stitutions. Mo reover, we note gen erally “that laws which chang e a rule of eviden ce, but which d o not increase the puni shmen t nor change the elem ents of t he of fen se orthe ult imate facts necessary to est ablish guil t, but only remove existing rest ricti ons
on the compete ncy of certai n clas ses of evidence or

of persons as wit

nesses do not constitu te ex post f acto la ws.” State

v. Pike , 978 S.W .2d 9 04, 9 26 ( Te nn. 19 98) ; see also Carmell v. Texas , 529 U.S. 513, 521- 552, 120 S. Ct. 1620, 1626- 1643 (2000)

. -42-

That having been said, we acknowledge that the rele vance o f the disp

uted state ments to Rickman’s gui lt depend ed upon the jury’s finding of Grosec lose’s gu

ilt. In othe

r words, Rickman’s attempts to telephone Groseclose following the discovery o f Debor ah’s body

only incriminated Rickman if Groseclose participated in the murder. Under these ci rcumstan ces, the trial court’s limiting instructions may not have adequately addressed the temptation presente d to the jury to engage in circular reasoning by which it inferr ed Rickman’s guilt from his attemp ts to call Grosec lose and Gros eclose’ s guilt fro m Rickman’ s. Howev er, Rickman’s atte mp ts to call Grosec lose did not occur in a vacuum. In other words, the State adduced abundant other evidence at trial with which the jury could find both Rickman’s and Groseclose’s guilt. Thus, even assuming the applicability of Bruton , any deficiency in the trial court ’s limiting instructio n was har mless. Harrington v. Califor

nia , 395 U.S. 250, 254, 89 S. Ct. 1726, 1728-1729 (1 969); United States v. Davis , 418 F.2d 59, 62-63 (9t h Cir 1969); cf. United Sta tes v. Win gate , 520 F.2d 309, 313 (2d Cir. 1975); Gant v. Sta

te , 466 S.W.2d 518, 523-524 (Tenn. Crim. App. 1969).

We also n ote that the United States Supreme Court has declined to find a violation of a defendant’s right to confrontation when a non-testifying ac complice ’s co nfession did not constitute “hearsay.” Tennessee v. Street , 471 U.S. 409, 4 17, 105 S. Ct. 2078, 2083 (1985); see also Statev. Stephenson , 878 S.W.2d 5 30, 549 (Tenn. 1 994); State v. Price , 46 S.W.3d 785, 803-804 (Tenn. Crim. App. 2000), perm. to appeal denied
, (Tenn. 2 001). In t he instan t case, it is not at f

irst glance a pparent that Rickman’s requests to speak with “Bill” or “Bill Groseclose” constitute hearsay

. Tenn. R. Evid. 801(c) 12 defines hearsay as “a statement, other than one made by the

declar ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”Tenn. R. Evid. 801(a) defines a “statement,” in releva nt part, as “an or al or wri tt en asser tion.” The se definitions restate Tennessee common law, see Tenn. R. Evid. 801, Advisory Commission Comments, and are largely identical to those set forth in the Federal Rules of Evide nce and the rules-43-

of evidenc e in most

states, 2 Kenneth S. Broun et al., McCormick on Evidence § 246, at 96 (John W. S trong ed. ,1999) . According to these definitions, questions or requests generally do not constitute hearsay. State v. Ma

this , 702 S.W.2d 179, 181-182 (Tenn. Crim. App. 1985); State v. Darrow Lynn Willi ams , No. W2 001-01825 -CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 943, at *6 n.1 (Jackson, November 29, 2001), perm. to appeal denied , (Tenn. 2002); Neil P. Cohen et al., Tennessee Law of Evidence § 8.01(10), at 8-22 (LEXIS Law Publishing 4 th ed. 2000).

Still, we have

previous ly observed that

questions or requests may constitute hearsay if they c ontain

implicit assertions. Williams
, No. W2001 -01825-C CA-R3-CD, 2001 Tenn . Crim. App. LEXIS 943, at *6 n.1; see also Neil P. Cohen et al., supra , at 8-22 n.34. Federal courts have

more narrowly held that the question or inquiry must be intendedas an assertion. See, e.g. , United States v. Jackson , 88 F.3d 845 , 848 (10th Cir. 1996) ; United States v. Long , 905 F.2d 1572, 1580 (D.C. Cir. 1990) ; United Sta tes v. Lewis , 90 2 F.2 d 1176, 117 9 (5th Cir. 1990) ; see gene

rally Ex parte Hunt , 744 So. 2d 851, 856-858 (Ala. 1999)(discussing a “split of authority” as to whether a question is a

“stateme nt” as defined by the hearsay rule). Regar dless, by inquiring if he could speak with“Bill” or

“Bill Gros eclose, ” Rickman clearly intended to asser t his desir

e to spea k with Groseclose. Cf. Jackson , 88 F.3d at 848 (“Th

e questio n, ‘Is thisKenny?’ cannot r ea sonably be constr ued to be an inte

nded asse rtion, eit her expr ess or impl

ied.”). Moreove

r, the Sta te clea rly soughtto introduce Rickman’s “statements” to prove the t rut h of the matter asserted as the prosecutor

remarked that the evidence was “be ing submitted to show that Ron Rickman attempted to contact Bill Groseclose.”

More significantly, the Supreme Court emphasiz ed in Bruton , 391 U.S. at 128 n.3, 88 S. Ct. at 1623 n.3 ( citationsomitted), that “the hearsa y sta tement . . . [at issue ] was cle arly inadmissib le . . . under traditional rules of evidence . . . . There i s not before us, therefore, any recognized

exception to the hearsayrule insofar as [thedefendant] is concerned and we intimate no view whatever th at such exceptions necessarily raise questions under the Confr ontation Clause.” Unlike the hearsay statement in Bruton , Rickman’s statements satisfy Tennessee’s co-conspirator exception to the hear say rule . Our conclusion in this rega rd requi res a re view of th

e requir ements of Tenn. R. Evid. 803(1.2)(E). Under that rule, the propo nent of a hearsa y stateme nt must esta

blish by a preponderanc e of the e vidence (1) that a conspiracy existed and the declarant and the defendant

were particip ants in the

conspira cy; (2) th at the sta

te ment w as made during the course of the conspiracy; and 3) that the statement was made in furtherance of the c onspiracy. State v. Henry , 33 S.W.3d 797, 801- 802 (Ten n. 2000). The evid

ence used to estab lish the fi rst prerequisite, i.e., the existence of the conspiracy and the connection of the declarant and the defendant thereto, must be independent

of the hearsay statement

itself. State v. Hutchison , 898 S.W.2d 161, 169 (Tenn. 1994). Otherwise, the cour

t may cons ider all t

he evide nce bef ore it, wh ether a dmissible a

t trial or not, in resolving these preliminary factual ques tions. Tenn. R. E vid. 104(a

); cf. also United States v. Shores , 33 F.3d 438 , 442 (4th Cir. 1994).

Withinthe context of the co-conspirator exception to the hea

rsay rule, our supreme court has defined

a conspiracy

as “a combination between two or more persons to do a c riminal or unlawful act or a lawful act by criminal or unlawful means.” State v. Carruthers , 35 S.W.3d 516,13 In State v. Walker , 910 S. W.2d 381, 384-385 ( Tenn. 1995) , an d id. at 403 ( Reid, J., concurring and

dissenti ng), our supreme cour t seemi ngly sugges ted th at the def ini tion of a conspir acy forpurpos es of the co-c onspi rat or except ion to the hearsa y rule is controlled by the sub stantive law of consp iracy in effect at the time of the statements. Sub sequ ently, however, this court in State v. Gerald Leander Henry , No. 01C01- 9505-CR-0016 1, 1999 Ten n. Cr im. App. LEX IS 167, at * *55-58 (Nashvi lle, February 25, 1999), cast doubt upon thi s interpreta tion of the W alker

decision, noting that the court’s “recogn ition of th e evi denti ary rul e ref lect s t hat the rul e wil l con trol on th e is sue of

admis sibi li ty of hearsay statements. ” Mo reover, in Henry , 33 S. W.3d at 802 n.3 & 80 3 n.4, the supreme court approve d our r eadin g of the W alker

decisi on in t

his r espect, reject ing t

he proposition th at t he evident iary rule i s contr olled by the stat utory offense of conspiracy. That having been s aid, the potential ly appl icabl e st atut e in Henry exp licitly disc laim ed an y inte nt to mod ify the ev iden tiary ru le. See Ten n. Co de A nn. § 39 -12-103( g) (1997) . Never thel ess, the s upreme court did not appear to rel y solel y upon this dis clai mer in af fir ming the independence of the evi dentiar y rule fr om the substanti ve law of cons pira cy.
-44- 555 (Tenn. 2000), cert. denied , 533 U.S. 953, 121 S. C t. 2600 (20 01); see also Alley , 968 S.W.2d at 316; State v. Lequire , 634 S.W.2d 608, 61 2 (Tenn. Crim. App. 1982). 13 Moreover, it has long been held that, for purposes of establishing the existence of a conspiracy within the meaning of the co-conspirator

exception , it is irre

levant wh ether or not the pa

rticipan ts were f ormally charged with

co ns pi ra cy. Lequire , 634 S.W.2d a t 612 n.1; see also Alley , 968 S.W.2d at 316. In this case, evidence independent of the disputed hearsay statements overwhelmingly established Groseclose’s and Rickman’s participation in a conspiracyto murder Deborah Groseclose and thereby obtain the proceeds of insurance policies on her life.

Of course, Rickman’s statements occurred followi ng the m urder. In Henry , 33 S.W.3d at 803 (citing State v. Walker
, 910 S.W.2d 381, 385-386 (Tenn. 1995) )(footn ote omitted), our supreme court observed that

[t]he commission of the offense that was the goal of the conspiracy does not nece ssarily e

nd the con spir acy, n or does it preclude the possibility

that the conspiracy encompassed later statem ent s regard ing concealment of the offense. At the same time, th e commis sion of the offense also does not imply that the conspiracy automatic ally included

all later

statemen

ts pertainin g to the concealment of the offense. The court affirmed that the duration of the conspiracy is depe ndent on the facts of each case, citing with approval the Minnesota Supreme Court’s adoption of the federal standa rd set forth in United States v. Mackey , 57 1 F.2d 376, 3 83 (7th Cir. 1978). Henry , 33 S.W.3d at 803 (citing State v. Buschkopf, 373 N.W.2d 756, 764 ( Minn. 1985 )); see also State v. Michael Bikrev , No. M2001- 01620-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 91, at **15-16 (Nashville, February 4, 2002).

Moreover, in the spe cific context o f a consp iracy to commit a mu

rder fo r the pur pose of acquiring the proceeds of insurance policies on the victim’s life, our

supreme court has held that the “conspiracy continues until the conspirators’ ultimate goal of col lecting th e proce eds of the

crime has been achieved or abandoned.” Hutchison , 898 S.W.2 d at 170; see a lso State v. Gaylor , 862 S.W.2d 546, 554 (Tenn. Crim. App. 1992). Analogously, in United States v. Howard , 770 F.2d 57, 61 (6th Cir. 1985) , the United States Cou rt of Appe als for the Sixth Circuit observed that, in the-45-

context of the defendant s’ conspi racy to c ommit arso n for the purpose of acquiring insurance procee ds, the conspiracy

continued until the collection of the insurance proceeds, “ a main objective [that] ha[d] not been attained or abandoned.” Cf. also Grunewald v. United States , 353 U.S. 391, 405, 77 S. Ct. 963, 974 (1957)(distinguishing for purposes of the federal co-conspira tor exception between“acts of concealment done in furthera nce of the main

criminal objectives of the conspiracy, and acts of concealment

done after these central objectives have been attained, for the purpose on ly of covering up after the crime”). At the time of Rickman’s statements in this case, Groseclose had notyet obtained the proceeds of insurance policies on De borah’s life, and

Rickman’s receipt

of the secondinstallment on the murder contract depended upon Groseclose’ s successin obtaining those procee ds. In other words, the common goal or objective of the conspiracy was still in existence at the time of the st atements, nor do we believe that Rickman’s flight to Oklahoma, without more, reflected an intent to abandon the common goal or objective.

Finally, “[a] statement may be in furtherance of the co nspiracy in countle ss ways. Examples include statements designed to get the schem e started, develop p lans, ar

range f or things to

be done to accomplish the goal, update other conspirators on the progress, deal with ar i sing problems, and provide information relevant to the project.” Carruthers
, 35 S.W.3d at 556. At the time of Rickman’ s statemen ts, he wa s clear

ly attempt

ing to “deal with arising pro bl ems” as the police had discovered Debora h’s body thereby increasing the danger of the appellants’ apprehension and the frustration of the appellants’ ultimate goal of collecting the insurance proceeds. Conversely, the discovery of Deborah’s body potentially brought the appellants closer to the attainment of their ultimate goal, an d Rickman certainly possessed an interest in monitoring the pro gress of any insurance claims filed by Groseclose. Indeed, Rickman later confess ed to polic e that his p rimary pu rpose in a ttempting t

o contact Grosec lose was to disc

uss payment of the outstanding bal anc e on the murder contract, i.e., the attainment of the re maining objectiv e of the c onspiracy. Tenn. R . Evid. 104 (a); Shores , 33 F.3d at 444.

Not only do Rickman’s statements satisfy Tennessee’s co-conspirator exception

to the hearsay

rule, but Tennessee’s co-conspirator exception is firmly rooted for purposes of the right to confrontation guaranteed by both the United States and Tennessee constitutions. In this reg ard, we first note that whether statemen ts fall wit hin a firmly rooted he arsay exception for purposes of the Confronta

tion Clause

of the Sixth

Amendmen

t to the United State s Constitutio n is a question of federal law. Lilly , 527 U.S. at 125, 119 S. Ct. at 1894 (plurality opinion) . Again, in Lilly , id. at 134, 119 S. Ct. at 1899, a plurality of the United States Supreme Court conc luded t hat acc omplices’ confessions that inculpate a c riminal de

fendant do not fall within

such an exception. However, the plurality qualifie d its conc lusion by acknowl edging

that “an y in herent u nreliab ility

that ac companies co-conspirator

statemen ts made du

ring the course a nd in furt heranc e of the c onsp iracy is p er se rebuttedby t

he circumstance s giving

rise to the

long hist ory of admitti ng such

sta temen ts.” Id. at 137, 119 S. Ct. at 1900. Indeed, in Bourjaily , 483 U.S. at 182, 107 S. Ct. at 2782, the Court held that14 The cour t th ereby nec essaril y rej ecte d the l anguage i n Walker , 910 S.W.2d at 384, t hat analogi zed Tennessee’s co-cons pira tor e xcepti on to t he Georgia co-cons pira tor e xcepti on at i ssue in Evans , 400 U.S. at 81, 91 S. Ct. at 2 15- 216

.

15 Again, Groseclose al leges i n his bri ef that this prejudice stemmed from pre-trial delay occasi oned by the tri al court’s denial of

his motion for

severance. Presu ma bly, h ow eve r, this pre judic e w ould result from the tri al court ’s denial of his motion f

or se verance , i f at

all , re gardl ess of any del ay.

-46- the requirem e nts of the

federa l co-con spirator

excepti on are id

entical t o the req uiremen ts of the Six

th Amendment’s Confronta

tion Clause

. See also United States v. Inadi , 475 U.S. 387, 4 00, 106 S. Ct. 1121, 1128-112 9 (1986); United States v. Molina , 75 F.3d 600 , 603 (10th Cir. 1996) ; Shores , 33 F.3d at 442; United States v. Saks , 964 F.2d 1514, 1525 (5th Cir. 1992) ; United States v. Coco , 926 F.2d 759, 761 ( 8th Cir. 1991) ; cf. Dutton v. Evans , 400 U.S. 74, 80-88, 91 S. Ct. 210, 215-219 (1970)(plurality opinion).

The Court in Bourjaily , 483 U.S. at 183 , 107 S. Ct. at 2782-2783 (citing Evans , 400 U. S. at 74, 91 S. Ct. at 210), did specifically distinguish state co-conspirator exceptions tha t “deviate[] from [the] common-law approach, admitting co-conspirators’ hea rsay statements made af ter termination of [the] conspiracy,” and further indicated that a separate inquiry into reliabil it y would be required of

evidenc e admitte d pursuan t to such co-conspirator exceptions. Accordingly,

we reiterate that, in Henry , 33 S.W.3d at 803, ou

r su pre me court seemingly adopted the federal approach to the co- conspira

tor exce ption in ap

plying Ten

n. R. Evid. 803(1.2)(E), affirming that the conspiracy must be ongoing atthe time of the co-conspirator’s statements, albeit the duration of the conspiracy will be dependent on the facts of each case, and the conspiracy does not

necessarily end withthe commission of the offense that was the goal of the conspiracy. 14 Correspondingly, in Alley
, 968 S.W.2d at 317-318, this court observed that Tenn. R. Evid. 803(1.2)(E) is a firmly rooted hearsay exception for purposes of both the Sixth Amendment to theUnited States Constitution and Article 1, Section 9 of the Tennessee Constitut ion. See also State v. Demetrius Robinson , No. 03C01-9712-CC-00549, 1999 Tenn. Crim. App. LEXIS 192, at **2-3 (Knoxville, March 8, 1999). In short, the admission of Rickman’s statements was entirely consistent with Groseclose’s right to confrontation under the federal and state constitutions. Thus, while the trial court did

indeed e rr, it didso only to the extent it prohibited the jury from considering Rickman’s statements as substantive evidenc e of Gro seclose ’s guilt.

iii. Mutually Antagonistic Defenses Groseclose’s third allegation of preju dice is that “he was forced to trial with a CoDefendant

who had a different defense.” 15 To the extent Grosec lose is ar

guing that the appe llants’ defenses were mut

ually ant agonistic , this court made the following observation in State v. Ensley
, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996)(citations omitted)(relying upon Zafiro v. United States , 506 U.S. 534, 538, 113 S. Ct. 933, 938 (1993), and United States v. Horton , 705 F.2d 1414, 1417 (5th Cir. 1983)):-47- “While ‘mutually antagonistic’ d ef enses ma y mandate

severa nce in

some circumstances , they are not prejudicial per se.” Due to the difficul ty in esta blish ing prejudice, relatively few convictions have been revers ed for f

ailure to sever on these gr ounds. Mere at

tempts to cast the blame

on the othe

r will not, standing a

lone, just if y a
severance on the grounds that the respective defenses are

a ntagonistic. “The defendant must go further and establish that a joint trial will result in ‘compelling prejudice, against which the trial court cannot protect, so that a fair trial cannot be ha d.’” See also State v. Go sne ll , 62 S.W.3d 740, 749 (Tenn. Crim. App. 2001), perm. to appeal denied , (Tenn 2001); State v. Clarence Mabry , No. 01C01-9112-CC-00369, 1992 Tenn. Crim. App. LEXIS 535, at **6-7 (Nashville, June 19, 1992). Accord ing to the above standard, a severance will only be granted when defenses a

re irreconcilable. Horton , 705 F.2d at 1417; see also State v. Alcorn , 741 S.W.2d 135, 140 (Tenn. Crim. App. 1987). In other wo rds, belief of one defense must compel disbelief of the other. See, e.g. , United States v. Pena-Lora , 225 F.3d 17 , 33 (1st Cir. 2000) ; United States v. T ootick , 952 F.2d 1078, 1081 ( 9th Cir. 1991) ; United States v. Guerrero , 938 F.2d 725, 727-729 ( 7th Cir. 1991).

At tr i al, Rickman did not dispute his involvement in the murder of Deborah Groseclose. Rather, he argued that the jury should convict him of second degree murder instead of first degree murder. Specifically, he attempted to minimize his involvement in the murder, especia lly in compa rison to Mount’s involvement, and disclaimed any intent to murder Deborah. Grosec lo se simply den

ied any in

volvemen t in the mur

der of hi s wife, a

rguing tha

t Moun t orchestrated

the offense. Thus, not only did belief of Rickman’s defense not compe l disbelief o f Groseclose’s defense, the two defense s were c onsistent in attemptin g to shift th e majorit y of blame to the deceased Mount. Illustra ting this point, Rickma

n’s pres entation

of Louis K

ey’s tes timony in his defense was equally, if not more, beneficial to Groseclose.

iv. Guilt by Association Groseclose’s final allegations of prejudice amount, in essence, to a claim that

the trial court’ s refusa

l to sever his trial from that of Rickman caused the jury to find his “guilt by association.” Groseclose first asserts a dispa rity in the amount of evidence adduced against eac h appella nt. In this regard , he notes that “numerous witnesses were called by the State who had no relevant testimony regarding Groseclose and would not have been witnesses if Mr. Groseclose went to trial alone Septem

ber 14, 1998.” He specifically cites Hylander’s testimony conce rning Rickman’s confess ion to the police and Casper’s testimony concerning Rickman’s attempts t o call Grosec lose following the discovery of Debora h’s body. Indeed, Grosec lose note s that the d isparity in eviden ce w as such th at Rickma n’s defe nse at the ir joint tri al entail ed Rickma n’s admiss ion to involvement

in Deborah’s murder. Secondarily, Groseclose c omplai ns t hat he “w as forc ed to sit beside Rickman at trial” and “Rickman is a large, intimidating man who r emained dressed in his jail clothes throughout the trial.”-48- Disparit y in the evi dence a

gainst def endants i s genera

lly not suff

icient al one to warrant a severance of defenda

nts. State v. H owell , 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000). We have previously explained:

In a proper case, a defenda nt may be granted a

severa nce due to the disparity of the evidence between codef endants. However, “a strong showing of prejudice” is required before a severance will be granted

on this groun d. The pr

ejudice require ment is not estab lished “s imply because much of the evide nce pre sented a

t trial is a pplicabl e onlyto his co-defendants.” Rule 8(b), Tenn. R. Crim. P., contemplates that evidence may be admitted a ga inst one or more def endants w

hich is not nece ssarily a

pplicabl e to other

defenda nts. Black v. State , 794 S.W.2 d 752, 758 (Tenn. Crim

. App. 1990)(footnotes omitted)(citing in part United States v. Walker , 720 F.2d 1527, 1533- 1534 (11th Cir. 1983) ); see also United States v. Chang An-Lo , 851 F.2d 547, 557 (2d Cir. 1988) (“[I]t is well es tablished

that ‘ dif fering levels of culpability and proo f are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials.”). Rather, a c omplaining defendant must show “that the jury ‘ was unab le to sift through the e vidence an d “make an individualized determination as to each defe ndant.”’” United States v. Cassano , 132 F.3d 646, 651 ( 11thCir. 1998) ; see also United States v. Shivers , 66 F.3d 938, 94 0 (8th

Cir. 1995) ; United States v. Sandini , 888 F.2d 300, 307 (3d Cir. 1989) ; United States v. Johnson , 763 F.2d 77 3, 777 (6th Cir 1985); cf. Statev. James Murray , No. 01C01-9702- CR-00066, 1998 Tenn. Crim. App. LEXIS 1323, at **36-37 (Nashville, Decemb er 30, 19 98); State

v. Steve Ketron , No. 955, 1991 Tenn. Crim. App. LEXIS 383, at **4-7 (Knoxville, May 22, 1991).

In the instant case, we preliminarily note that most of the evidence adduc ed at the appella nts’ joint trial would in fact have been ad missible a t a separ ate tria l of Groseclose to

establish his “intent, knowledge, and participation as an aider and abettor” or, alterna tively, as an accessory before the fact. Cf. State v. Alcorn , 741 S.W.2d 135, 140 (Tenn. Cri m. App. 19 87). Addressing Grosecl ose’s specific allegations, we further note our conc lusion above that Casper’s testimon y would hav e been a

dmissible a

gainst Grosec lose at a

separa te trial. We

now broa

ch the pos sibility that portions of R ickm an’s confession also would have been admissible at a separ ate trial of Grosec lose pursuant to the hearsay exception pertaining to statemen ts against in

terest. Tenn. R. Evid. 804(b)(3).

With respect to the possible admissibility of Rickman’s confession at a separ ate trial of Grosec lose, we

must empha size tha

t the State was req uired to p rove Rick man’s an d/or Britt’ s guilt of first degreemurder in order to prove G

roseclo se’s guilt

of being a

n acces sory bef

ore the f act to first degree murder. Gervin v . State , 371 S.W.2d 449, 453- 454 (Ten n. 1963); Pierce v . State , 168 S.W. 851, 856 ( Tenn. 191 4); State v. Barbara Tipt on , 1984 Tenn. Crim. App. LEXIS 2760, at *2 (Knoxville, February 29, 1984). That having been said, the plurality in Lilly v. Vir ginia , 527 U.S. 116, 133-134, 119 S. Ct. 188 7, 1898-1 899 (1999 ), decli ned to hold that, in the specific context of accompl ices’ con fessions that inculpate a c riminal de fendant , the state

ment against interest excepti o n-49-

to the hearsay rule is a firmly rooted excepti on for pur

poses of t he Confr ontation Cl ause of t

he Sixth Amendment

to the Unit

ed StatesCo nstitut ion, albe it the gove

rnment ma

y demonstr

ate that a confession possesses particularized guarantees of trustwor thiness dispensing with the need for confrontation. Of

particular rele

vance to Rickman’s confession, moreover, the plurality observed:
It is highly unlikely that the presumptive unrelia bility that attache s to accompl ices’ confess ions that sh

ift or spr ead blam e can be effec tively rebuttedw hen . . . the go vernmen t is involve d in the sta

tements’ produc tion, and when the statements describe past events and have not been subjected to adversarial testing. Id. at 137, 119 S. Ct. at 1900.

Yet, “ Lilly ’s full reach [is] unclear.” United States v. Shea , 211 F.3d 65 8, 669 (1s t Cir. 2000). For example, for the limited purpose of establishing the conduct of a principal in the trial of an aider and abettor or acce ssory before the fact, whethe r the redac tion of an accomplice’s confession would cure any presumptiveunreliability is unclear. Cf. Givens v. State , 55 S.W. 1107, 1109-1110 (Tenn. 1899)(holding that the confessions of the principal “were compete nt” in the trial of a defendant for being an acce ssory before thefact, “not to fix guilt on [the defendant], but to show the guilt of [the principal] and the grade of his offense” ) ; Self v. State , 65 Tenn. 244, 245-247 (1873)(declining to commit itself to the doctrine that “it is notpermitted to the State to rely upon the confessions of the pr

incipal to establish his guilt as preliminary to an investigation of the guilt of an accessory before

the fac t”); cf. also United States v. Pe trillo , 237 F.3d 119, 122-123 (2dCir. 2000). In any eve

nt, even a ssuming tha

t Rickman’ s confes sion to the police wo

uld have b een inad

missible at a separate trial of Groseclose, Gr oseclose does not

allege in hi s brief that the redaction of the confession was inconsistent with the requirements of Bruto n for pu rposes of a joint trial, and our supreme court has held that even a co-defenda nt’s plea of guilty before a jury at a joint trial does not require severance

if the plea does not inculpate the complaining co-defendant. See State v. Coleman , 619 S.W.2d 112, 113 n.1 & 116 (Tenn. 1 981); see also Dorsey v. State , 568 S.W.2d 639, 641-642 (Tenn. Cr im. App. 19 78); cf. State v. Armes , 673 S.W.2d 174, 178 (Tenn. Crim. App. 1984).

Finally, the record does not contain an obj ection by Groseclose to Rickman’s appearance

at trial o r any objection to be

ing seate d beside h

is co-defendant . Tenn. R. App. P. 36(a). Moreover, Groseclose does not cite the record in support of his claim that his co-de fen d ant was dressedin a jail

uniform throughout the trial or otherwise appeared “intimidating,” nor have we been able to find any reference to Rickman’s appearance in the record. “ Statements in briefs as to what occurred in the trial court

cannot be considered unless theyare supported by the record.” State v. Max , 714 S.W.2d 289, 293 (Tenn. Crim. App. 1986) ; see also State v. Thompson , 832 S.W.2d 577, 579 (Tenn. Crim. App. 1991).

v. The Trial Court’s Exercise of Discretion-50- In sum, Groseclose has failed to demonstrate that he was clearly prejudiced by being jointlytr ied with his co-defendant. State v. Carruthers , 35 S.W.3d 516, 552 (Tenn. 2000), cert. denied , 533 U.S. 95 3, 121 S. Ct. 2 600 (2001 ); State v. H owell , 34 S.W.3d 484, 491 (T enn. Crim. App. 2000); State v. Burton , 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988). Acc ordin gly, we cannot say that “‘the trial court’s discretion ended and the granting of [a] severa nce became a judicial duty,’” the breach of which entitles the appellant to a revers al of his conviction. Burton , 751 S.W.2d at 447 (a lteratio n in origin al). Thisissue is without meri t.

B. Mount’s

Former Testimony BothGroseclose and Rickman complain of the trial court’s admission at trial of Mount’s former testimony. The appella nts appare

ntly pred icate the ir compla int upon two

separa te grounds. First, they assert that the federaldistrict court’s grant of habeas corpus relief o n the basi s of ineffective assistance of counsel prec luded the admission upon retrial of Mount’s former testimony consistent

with their constitutional right to confrontation. Second, they somewhat more summarily

assert that the federal district court’s finding that Mount’s testimony was perjured a nd that the St ate kn owingly solicited perjury likewise precluded the admission of Mount’s former testimony. According to the appellants, “[u]nder the doctrine s of Res Judicata, Comity, Collateral Estoppel, the Law of The Case, this testimony should have been prohibited.”

The State disputes the applicability of the law of the case doctrine to the rulings of th e federal district court on the appellants’ habeas c orpus petitions. Moreover, assuming the applica bility of the doctr ine, the St ate asse rts that Mount ’s testimo ny was ad missible in

light of bo th the United States Supreme Court’s decision in Mancusi v. Stubbs , 408 U.S. 204, 92 S. Ct. 2308 (1972), and additional evidence presented to the trial court following the fede ral court’s rulings. The State doe s not addr

ess the imp licationsof the re maining do ctrines cited by the appella nts.

In the trial court, Groseclose filed a motion on August 3, 1998, to exclude Mount’s testimony. Rickman did not file a separate motion to exclude Mount’s testimony but, on August 4, 1998, did file a

“Notice of Intent to Adopt Co-Defendant’s Motions.” On September 2, 1998, the trial court co nducted a

hearing on the join

t motion to e

xclude Mo

unt’s f ormer te stim ony. At this hearing, the State presented the testimony of Hugh Stanton, Jr., the District Attorney General for the Thirtieth Judicial D istrict a

t the time o f the app ellants’ first tria l.

Stanton testified that

he and Jewett

Miller we re the pr osecutor s at the a

ppellant s’ first trial. Along with Miller, Stant on partic ipated in pre-trial negotiations with the attorneys representing the different co-defendants, including t he attorneys representing Barton Mount. Stanton testified that, in essence, the State

agreed to sever Mount’s c ase

from that of his co-defendants in return for his testimony at the appellants’ trial. Stanton denied th at the Sta te other wise ente red into any formal agreemen t with Mount prior to the appellants’ first trial and denied soliciting perjured testimony from Mount.-51- Indeed, Stanton explained that he avoided making any offers of leniency to Mount prior to th

e appell ants’ fir st trial pr

ecisely because
I didn’t want the lawyers for Rickman and Gr oseclose to get up, or

to be able to get up and say, well, you’re testifying the way you’re testifying because the Attorney General agr eed to give you X number of year s.

[Al so], I didn’t kno w how many years, d idn’t know

- - I wan ted to hear his testimony, I wanted to know what he was saying. But the other lawyersundersto od that - - they knew me, I’d d ealt with both of them, and they knew that

he was go ing to rec eive a mo re favo rable recommendation on a plea of guilty than he would have if we’d put him to trial with the other three.
In other words, Stanton assumed that, in advising their client to testify at the appe llants’ first trial notwithstanding the lack of any fo rmal a greeme nt, Mount’ s attorne

ys relied upon their

past interaction with Stanton and Stanton’s general reputation as a “fair ma n.”

Stanton specific ally rec alled tha t he neve r stated t o Mount’s attorneys that the Sta te would forego t he death penalty i n Mount’s c ase in re turn for his testimo ny, albei

t St anton wa s “certa in that they thought I would not go to the death penalty for Barton Wayne Mount if he testified and coopera

ted with the State.”Stanton co nfirmed t hat, in fact, he

did not inte

nd to pursu e the dea

th penalty in Mount’s case if Mount cooperated with the State. The former prosecutor concluded:
I did not make an offer. I

did not say you will get a good offer. Idid

no tsay you wi ll get a ba d offer . I did not s ay you will get a de ath penalty offer. I said if you want to cooper - - They came to me and said we would

like to cooperate. We would like for him to testify for the State. Do you want him to testify for the State and, if so, would you sever and I said yes. Now, that’s about the truth in the matter.

The trial court de nie d the appellants’ motion on October 12, 1998. First, relying primaril y upon the United States Supreme Court’s decision in Mancusi , 408 U.S. a

t 204, 92 S. Ct

. at 2308, and

its own review of Mo

unt’s test imony at the

appell ants’ fir st t rial, the trial court concluded

that the federal court’s grant of habea s corpus relief on the basis of ineffective assistance of counsel did not mandate the exclusionof Mount’s former testimony upon retrial. The court noted that [b]etween all three attorneys, Mr. Mount was thoroughly grilled for

several hours. He was attacked about whether he “in fact” had made

a “deal” with the State of Tennes see. There was extensive questioning about this is sue. Mount’s character was attacked f rom every conceivable angle, including his sexual propensities. He was-52- cross-examined

in great detail about lies to the police. The sum total of several hours’ was a blistering attack on his credibility. This Court is satisfied that the purpose of cross-examination was accomplished withMr. Mount. The Court is cogn izant of

the fac t that the Sixth Circuit Court of Appeals found Mr. Livingston and Mr. Brackstone

were ineffe ctive in th

eir def ense and their presentation of

that def ense of Groseclose and

Rickman and this Court cannot disagree with that finding, but again, on a limited basis as it appliesto the testimony of Barton Wayne Mount

t his Court concludes that overall the total cross-examination of Mount was effective. Additionally, the court found

that there wa s no deal in exchange for Mount’s testimony and that the District Attorney General did not suborn perjury. Further, this court finds that General Stanton had worked hard at developing a reputation for hone sty and fa irness and as a r

esult he d id not need t

o make a “deal” because counsel kne w their client would be treated f airly

. This Court is somewhat offended by the unsubstantiated attack on such a man and his reputation.

Pursuant to the trial court’s ruling, as noted previously, the State introduced at t he appella nts’ trial Mount’s direct

testimony from the 1978 trial. At the appellants’ request, however, and notwithstanding its ruling, the trial court excluded Mount’s testimony on cross-examination.

i. Former Testimony, the Right to Confrontation, and Ineffective Assistance of Counsel

In Ohio v. Rob erts , 448 U.S. 56, 72-74, 100 S. Ct. 2531, 2542- 2543 (1980), the Supreme Court held

that the f

ederal hearsa y excep tion gover

ning form

er testim ony is a “f

irmly rooted” exception, and satisfaction of the requirements thereof, assuming the unavailability of the declar ant, will render proffered evidence immune from challenge under the Confronta tion Clause of the Sixth Amendmentto the United States Constitution. See also United States v. Mann , 161 F.3d 840, 861 (5th

Cir. 1998) ; United States v. McKeeve , 131 F.3d 1, 9 (1st Cir. 1997) ; United States v. Kelly , 892 F.2d 255, 262 (3d Cir. 1989). Prior to the adoption of the Tennessee Rules of Evidence,

our supreme court adopted the federal rule “as a statement of the current law in Tenne ssee.” State

v. Causby , 706 S.W.2d 628, 631 (Tenn. 1 986); see also State v. H owell , 868 S.W.2d 238, 250 & 250 n.2 (Tenn. 1993). Moreover, Tenn. R. Evid. 804(b)(1) is substantially identical to the fede ral rule, albeit Fed. R. Evid. 804(b)(1)(emphasis added) more liberally permits the introduction of for mer testimony if, “ina civil action or proceeding, a prede cessor i n intere st [to the party ag ainst whom the testimonyis now offe

red], had an oppor tunity and simila

r motive to

develop t he testimo ny b y di

rect, cross, or redirect examination.” See State v. Ernest Jay Walker , No. 03C01-9110-CR-00346, 1993 Tenn. Crim. App. LEXIS 111, at *27 & 27 n.4 (Knoxville, February 22, 1993). In short, satisfaction of Tenn. R. E

vid. 804(b )(1) will likewise satisfy constitutional requirements of confrontation. See,-53-

e.g. , State v. Bilbrey , 912 S.W.2d 187, 187-188 (Ten n. Crim. App . 1995); State v. Michael G. Waldrum , No. M1999-01924- CC A-R3-CD, 2000 Tenn. Crim. App. LEXIS 937, at **28-29 (Nashville, December 8, 2000).

Tenn. R. E

vid. 804(b ) provide s: The following are not excluded by the hearsa y rule if t he decla rant is unavaila ble as a witness: (1) Former Te stimony. - Testimony g iven as a witn ess at another hearing of the same or a different proceeding or in a deposition taken in compliance with law in the c ourse of the same or another proceeding, if the pa

rty agai nst whom the

testimony is now offered had both an opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination. The critical question in determining the admissi bility of f ormer te stimony is “ ‘whethe r fairne ss allows imposing, u

pon the pa

rty agai nst

whom [it is] now offered, the handling of the witness on the earlier occasion.’” Howell , 868 S.W.2d at 250. The appellants assert that in this case th e federal courts’ adjudica

tion of ine ffectiv e assista

nce of c ounsel dictates a

negative response

to this “cr itical” question.

In Roberts , 448 U.S. a t 73 n.12, 1 00 S. Ct. at 2543 n.12, the United Sta

tes Supre me Co urt held that, generally speaking, a court need not explore the adequacy of counsel ’s cross

examination at the ea

rlier pr oceeding as a pre

requisite to admittin g former

testim ony . The Court

ar ticulated an exce

ption to thisrule, how ever, w hen a defendant ’s repr

esentat ion in an e arlie

r proceeding has been adjudicated ineffective. Id. “Under those unus u al circumst

ances, i t [is] necessary to explore the character of the a ctual cross -examin ation to e nsure tha t an adeq uate opportuni ty for full cross-examination [has] been aff orded to the defendant.” Id. The Court relied upon Mancus i , 408 U.S. at 214-216, 92 S. Ct. at 2313-2315, for the proposition that ineffective assistance of counsel at the earlier proceeding will only render former testimony inadmissible if the ineffective assistance actually affected the cross-e xaminatio n of the currently unavaila ble witness. See also, e.g.
, United States v. Ciak , 102 F.3d 38, 43-44 (2d Cir. 1996) ; State v. Joyner , 774 A.2d 927, 928- 938 (Conn. 2001); People v. Jones , 78 Cal. Rptr. 2d 265, 268-270 (Cal. Ct. App. 1998).

According to the appellants, the federal district court’s grant of habeas corpus relief

on the basis o f ine ffectiv e assista nce of c ounsel en

compasse d a findin g that the ineffe ctivene ss actually affected counsel’ s cross-examination of Mount, and this finding is binding upon the trial court pursuant to the doctrines of “Res Judicata, Comity, Collateral Estoppel, theLaw of The Case.” We note that , other th an provid ing this laundry list of pote ntially ap plicable doctrine s, the app ellants failto cite any authority in support of or pr ovide a ny argument concerning, specifically, the applica tion of these doctrines. Tenn. R. App. P. 27(a)(7); Tenn. Ct. of Crim. App. Rule 10(b). Moreover, in the trial court, the appellants’ argument suffered f rom a similar lack of

clarity. Tenn.-54-

R. App. P. 36( a). Indeed, the a ppellant s seemingly relied solely upon the law of the case doctrine. Id. Notwithsta

nding wai ver, we

will addr ess the a ppellant s’ argum

ent.

In Grosec lose v. Bell , 895 F. Su pp. 935, 954-960 (M.D. Tenn. 1995), the federal district court concluded that the performance of Grose close’s attorne

y at his fir st trial “ ‘fell

below

an objective standard of reason able ness’” i n numerou s respects, and, indeed, c ounsel fa iled “to subject the prosecution’s case to meaningful adversaria l te sting” or otherwise “function in any meaningful sense asthe Gove rnme nt’s a dversary.” In relevant part, the c ourt noted counsel’s deficiency with respect to cross-ex am ination of witnesse s genera

lly and wit

h respect to crossexamination of Mount specifically. Id. at 95 9

. The cour t emphasiz ed that c ounsel’scrossexamination o f Mount consumed only eleven pages of transcript and cited the de scription by attorney Charles Fe

ls at the federal habeas corpus evidentiary hearing of counsel’s cross-exa mination “as ‘a remarkably limited effort for a cr itical major witness against your client.’” Id. Finally, the court concluded that counsel’s failures “prejudiced the defense so as to deprive

Grosec lose of a

fair trial.” Id. at 960. Alternatively, citing United States v. Cronic , 466 U.S. 648, 659, 104 S. Ct. 2039, 204 7 (1 984), the

court co ncluded t

hat couns el’s fai lure to su bject the prosecu tion’s ca se to meaningful adversarial

testing warranted a presumption of prejudice. Grosec lose , 895 F. Supp. at 960.

In Grosec lose v. Bell , 130 F.3d 11 61, 1169- 1170 (6th Cir. 1997), the United States Courtof Appea ls for the Sixth Circuit affirmed the district court’s conclusion that the appellant’s counsel had rendered deficient perfor mance but, because prejudice was “ so patent ,” declined to addresswhether

or not cou

nsel’s pe rforman ce was s ufficie

ntly in ep t to require a presumption of prejudice. In a ssess ing counsel’s performance, the court of a ppeals similarly noted the brevity of counsel’s cross-examination of Mount, “perhaps the most crucial witness for the State.” Id. at 1166.

In Rickman v. Dutton , 864 F. Supp. 686, 704 (M. D. Tenn. 1994), the district court concluded

that Rickman’s counsel at his first trial “was hostile to his client and s o burdened by a conflict of interest that

he failed to subject the prosecution’s case to meaningful adve rsarial testing as required under the Sixth Amendment.” Significantly, the court specifica lly noted:
In t he i nstant action, there is overwhelming evidence that [trial counsel] was sympa theti c to the pr osecutio n and eff

ectively abandoned

representation of Rickman at trial. For examp le, incrossexa mining prosecution witness and co-conspirator Barton Wayn e Mount, [counsel] suggested to Mount that Mount had car efully plannedout the cr

ime with Rickma

n and the other co- defenda nts “to the nth degree,” listing the name of each co-def endant se parately for greater emphasis. . . . [Counsel] reinforced the n otion of planning despite proof wh

ich sugge sted that t

he defe ndants ente red the victim’s residence without a lethalweapo n and may have lacked a coherent plan at that point as to how she was to be killed.-55- [Counsel] repeatedly elicited testimony which portrayed Rickman in

a deviant, destructive, and threatening light. [Counsel] asked Mount if he did not consider the defendants to be “nuts,” i f he thought them to be “normal,” chided

Mount bec ause

Mount “never suspected that there was anything wrong with either one of them,” an d concluded, “You wouldn’t

know a psy chiatric

case if you saw one, would you?” Id. at 702. The court concluded that a presumption of

prejudice was warranted pursuant to Cronic , 466 U.S. at 659, 104 S. Ct. at 2047. Rickman , 864 F. Supp. at 704.

In Rickman v. Bell , 131 F.3d 1150, 1156 (6th Cir. 1997), the United States Court of Appeals for the Sixth Circuit agree d wit h the distr ict cour t that cou nsel’s pe rforman ce was s o egregious as to amou nt t o the cons tructive denial of any assis tance of

counsel. In particular, the court noted that counsel’s cr o ss-exam ination of Mount illust

rated c ounsel’shostility to ward his client in that he elicited testimony damaging to Rickman. Id. at 1158.

In assessin g the impa

ct of the se fede

ral cour t decision s u pon the admissibility of Mount’s former testimony at the ap pellants’ retrial , we will f

irst briefly addr

ess the a pplicabi lity of the law of the case doctrine. Our supreme court has observed that [t] he phrase “law of the case” re fers to a legal doctrine which genera lly prohibits recon s ideration of issues that have already been decided in a prior appeal of the same case. In other words, under the law of the case doctrine, an appellate cour t’s decision on an issue of law is binding in

later tr ials and appeals of

the same case if the fac ts
on the second trial or appeal are substantially the sameas the fa

cts in the first trial or a ppeal. Memphis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd. , 975 S.W.2d 303, 306 (Tenn. 1998); see also State v. Jefferson , 31 S.W.3d 558, 560-561 (Tenn. 2000). Collateral federal habeas corpus proceedings, however , do not qualify as “a prior appeal of the same ca se.” Rather,

“The whole history of the [feder al] writ [of habeas corpus] -- i t s unique developm

ent -- re futes a c onstruct

ion of the federa l courts’ habeas corpus po wers tha

t would ass imilate the

ir task to t hat of courts of appella te review. The fu

nction on h abeas isdiffere nt. It is to test by way of a n original civil proceeding, in dependent of the normal channels of review of criminal judgments, the ve ry gr avest allegations.” Kaufman v. United States , 394 U.S. 2 17, 223-2 24, 89 S. Ct. 1 068, 1072- 1073 (196 9); see also, e.g. , United States v. Morgan , 346 U.S. 502, 505 n.4, 74 S. Ct. 247, 249 n.4 (1954 )(obser ving that a

writ of error c oram nobi s “is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and re cord, the beginning of a separate civil proceeding” ); Palma v. United States
, 228 F.3d 323, 327 (3d Cir. 2000) (observ ing that “a petiti on for a w rit of hab eas corpus is an16 In Roane v. Washi ngton Count y Hosp. , 769 A.2d 263, 266 (Md. Ct. Spec. A pp. 2001 ), the Maryland cou rt

narr ow ly int erpre ted t

he la w of the c ase doc tri ne to “ apply onl y within a gi ven court sys tem .” Si milar ly, the Kent ucky Su pr eme Court obs erved i n She rley v . Com mo nw ealth , 889 S.W .2d 7 94, 7 97 ( Ky . 199 4), tha t th e l aw o f the case doctr ine is “res erved f

or si tuations where t he deci sion of a s uperi or cou rt with in the s ame judi cial organi zati on is bindi ng
on a subsequent trial court of that j udicial organization or upon itself.” Conversely, several federa l court s have suggested t ha t t he l aw of t he ca s e d oc t ri ne i s ap pl i ca bl e t o s ep ar at e c as es i n d i ff er en t co ur t s ys t ems wh en the cases invol ve the same parti es and the sam e sub ject m atter. Gage v. General Motors Cor p. , 796 F.2d 345 , 349 -35 0 (1 0th Cir. 1986); Barret

t v. Baylor , 457 F.2d 119 , 123 -12 4 (7 th Cir. 19 72)

. But see Forest Cit y Chevrol et v. Waterf ord of Portl and, LLC , 172 F. Sup p. 2d 227 , 228-229 (D . Me. 2001 ). We beli eve that thes e two appr oaches are, res pecti vely, too nar row and too br oad.
-56- independent

civil action even though the detention complained of arises out of a criminal action”); Anderson v. Singletary , 111 F.3d 801 , 804 (11th Cir. 1997) (observing that ha beas cor pus case s “‘are independent

civildispositions of completed criminal proceedings’”)

. 16 Accord ingly, we agree with the State that the appellants’ reliance upon the law of the c ase doctrine is misplaced.

Turning t o t he remaining doctrines cited by the appellants, we note that judicial comity is “[t]he respect a court of one state or jurisdiction shows to another state or jurisdict ion in giving effect to the other’s laws and judicial decisions.” Black’s Law

Dictionary

262 (7 th ed. 1999). We need not, however, decide whether c onsiderations of judicial comity alone would bind the trial court in this cas e to the f

ederal h abeas court’s assessme nt of coun sel’s ef

fective ness in cr

ossexamining Mount during the a ppellant s’ first

trial because we conclude that the doctrine of collateral estoppel effec ts that re sult. Colla teral es t oppel i s a corollary of the doctrine of res judicata and prevent s parties f

rom relit igating any issue tha t was act ually litigate d and fina

lly d ecided in an earlier action. 46 Am. Jur. 2d Judgments § 516, at 780-781 (1994). In other wor ds, “once an i ssu e is actually and nec essarily

determined by

a court o f compet

ent jurisd iction, tha

t determination is conclus iv e in subsequent suits based on a different cause of action involving a party to the pr ior litigation.” Montana v. United States , 440 U.S. 1 47, 153, 99S. Ct. 970, 97 3 (1979); see also Knox County Educ. Ass’n v. Knox County Bd. of Educ. , 158 F.3d

361, 376 ( 6th Cir. 1998).

In applying

the doctrine of collateral estoppel in this case, we ac knowledge decisions by t he United States Supr

eme Court

indicating that st

ate courts a

re bound to apply federa l rules in determining the preclusive effect of fe de ral court decisions on issues of federal law. Heck v. Humphrey , 512 U.S. 4 77 , 488 n.9, 1 14 S. Ct. 2364 , 2373 n.9 ( 1994); see also Semtek Int’l I nc. v. Lockheed Martin Corp. , 531 U.S. 4 97, 507, 12 1 S. Ct. 1021, 1027 (200 1); Gib son v. Trant , 58 S.W.3d 103, 114 n.4 (Tenn. 2001). Accordingly , we are bound to follow the prescription by the U nited States Cour

t of Appe als for th

e Sixth Circu

it of the f ollowing prereq uisites to a court’ s applica tion of the

doctrine of colla teral es toppel: (1) the issue

in the subs equent litigation [must be] ide

ntical t o tha t resolvedin the ea

rlier liti gation, (2) the is sue [must have been] actually litigated and decided in the prior action, (3) the resolution of the issue was necessary

and essential to a judgment on themerits in the prior litigation, (4) the party to be estoppe d was a party to the-57- prior litigation

. . . , and (5 ) the par ty to be estopp ed had a

full and f air opportunity to litigate the issue.
Hammer v. INS , 195 F.3d 836, 8 40 (6t h Cir. 1999). Moreover, a trial court’s assessment of the availab ility

of colla teral es toppel is a mixed que stion of la w and fa ct that an appella te court reviews de novo. Id.

Again, in order to determine whether the admission of Mount’s fo rmer testimony would violate Tenn. R. Evid. 804(b)(1) and the appellants’ right to confr ontation, the trial court was required to determine whether counsel’s ineffectivene ss at the appellants’ first trial extended to their cross-examination of Mount. A fair reading of the federal courts’ decisions in the appellants’ habeas corpus proceedings leads inexorably to the conclusion that the same issue wa s litigated before and decided by the fede

ral courts. As to whether the resolutionof the issue was necessary and essential to the judgments on the merits in th e prior p roceed ings, both the federal district court and the federa l court of appeals specifically

cited counsel’s cross-examination of Mount as grounds for concluding that the appellants received

ineffective assistance. Cf. Mancusi , 408 U.S. at 214, 92 S. Ct. at 2313- 2314; Ciak , 102 F.3d a

t 43-44; Joyner , 774 A.2d at 936-93 8. Finall

y, t he State w as clea

rly a party to the federal habeas corpus proc eedings and had a full and fair opportunity to litiga te the effec tiveness of

counsel’s cross-examination of Mount. Accordingly , the State was estopped from asserting that

the appellants had an opportunity to develop Mount’s testimony by cross-examination at their f irst trial

.

Notwithsta

nd ing the effect of the doctrine of collater al estoppel, the trial court suggested that any violation of Tenn. R. Evid. 804(b)(1) and any denial of the appellants’ right to confrontation were avoided by co-defendant Britt’s cr oss-examination of

Mount at the appell ants’ first trial. In this regard, we preliminarily note that Tenn. R. Evid. 804(b)(1) provide s that“it is the party ag ainst whom the testimony is now offered” that must have had “both an opportunity and a similar motive” to cross-examine the unavailable witness at the prior proce edings.” Accordingly, from a purely evidentiary perspective, the trial cour t erred in a dmitting Mount’s testimony on the basis of his cross-examination by Britt’s attorney. Our conclusion that the admission of Mount’s testimony was inco nsistent w ith Tenn. R

. Evid. 804(b)(1), however, does not necessarily resolve the appellants’ claim that the admission violated their right to confrontation.

The admission of Mount’s testimony wa s likewise incons istent with the slightly more liberal federa

l counter part to Te nn. R. Evid. 804(b)( 1), a poin t that is sig nifican

t only to the extent that the Supreme Court has held that the satisfaction of the requirements there of will render proffered evidence immune fr

om challe nge unde r the Conf

rontation Clause of

th e Sixth Ame ndment to the United States Constitution. As noted previously, Fed. R. Evid. 804(b )(1) p rovides for the introduction of forme

r testimon y if, “in a civil act ion or pro ceeding , a predecessor i n interest [to the party against whom the testimony is now offered] had an opportunity and similar motive to develop the testimony.” In United Sta tes v. McD onald , 837 F.2d 12 87, 1291 ( 5th Cir. 19 88), th e United States Court of A

ppeals f or the Fif th Circuit a

greed w ith the defendant ’ s in terpre tation of F

ed. R.-58-

Evid. 804(b)(1) that “the phrase ‘in a civil action’ re fers to the type of pro ceeding in which the [former testimony occurred] rather than the type of proceeding in which the [former testimony] is offered.” Accord

ingly, the court held that, “[i]f a party in a civil case and the government in a later criminal case ha

ve suffi ciently similar inc entives to develop t

he testim ony, we see n o reason

to conclude that the r

ule [gove rning th e adm ission of former testimony] is necessarily and always unavaila ble to a criminal defendant.” McDonal d , 837 F.2d at1292-1293. Significantly, the court cautionedthat “there is some common ground that the predec essor in in terest c lause

is inapplic able when testimony i s so ught t o be introduced against a criminal defendant,” id. at 1291 (e mphasis added), but conceded that t he Seven th Circuit h ad depa

rted fro m this view in United States v. Feldman , 761 F.2d 380, 385 & 387 (7th Cir. 1985), at least in the context of former testimony from

a prior civil action. This court has found no authority supporting the admission against a criminal defendant under the federal

rule of former testimony from a prior criminal action when a predecessor in interest, as opposedto the defendant himself, had an opportunity and similar motive to develop the testimony. Mo r eover, the notes of the federal Advisory Committee on the forme r testimony exception observe that

the United States Supreme Court has not resolved the question of whether, for purposes of the constitutional requirement of confrontation, “the ac cused mus thimself have been

a party to the ea

rlier proceedingor whether a similarly situated person will serve the purpose.” Cf. Ol son v. Green , 668 F.2d 421, 429 ( 8th Cir. 1982)( “The rig ht to conf

ront witne sses is a constitutional right personal to the accused.”).

Still, it is worthy of repeating that, even if hearsay testimony does not fall within a firmlyrooted hearsay exception, it will not violate a defendant’sright to confrontation if it bears its own “‘particularized guarantee s of trustworthiness.’” Lilly v. Virg inia , 527 U.S. 1 16, 125, 11 9 S. Ct. 1887, 1894

(1999)( plurality opinion); see also Roberts , 44 8 U.S. at 66, 100 S. Ct. at 2539 . In short, “the Clau se counte nances . . . hearsay

marked with such trustworthiness that ‘there is no material departure from the reason of the general rule .’” Roberts , 448 U.S. a t 65, 100 S. Ct. at 2539;

see genera

lly Lee v. Ill inois , 47 6 U.S. 530, 5 40, 106 S. Ct. 2056, 2062 (1986). Nevertheless, we neednot decid

e here w hether B ritt’s cr

oss-examin ation of M ount aff orded his testimo ny an additional guara

ntee of t rustwort hiness suf

ficient t o rebut its

presumpt

ive unreliabil it y as we conclude below that any e rror in the admission of the testimony was harmless bey ond a reasona ble doubt.

ii. Per jured Tes timony As noted by the appel lants, t he federal district court also found that (1) “Mount testified falsely whenhe stated that he had received no benefit and expected to get no benefit from his testimony,” (2) “[t]he State was under an affir mative duty to correct Mount’s false and misleading testimony, and . . . failed to do so,” and (3) the “State failed to provide materia l evidence withwhich [the defendant] could have e ffectively cross-examined and impeached Mount, and which demonstrates that Mount testified falsely at trial.” Rickman v. Dutton , 864 F. Supp. 686, 705-706 (M.D. Te nn. 1994); see also Grosec lose v. Bell , 895 F. Supp. 935, 960 (M.D. Tenn. 1995). However, the United States Court of Appeals for the Sixth Circuit declined to addre ss this issue

in-59-

light of its dispo sition of th e appell ants’ ca se s on th e basis of ineffe ctive as sistance

of counse

l. Grosec lose v. Bell , 130 F.3d 11 61, 1171 ( 6th Cir. 1997); Rickman v. Bell , 131 F.3d 11 50, 1152 ( 6th Cir. 1997).

We conclude that the trial court was not bound by the federal district court’s findings concerning the perjured nature of Mount’s testimony.

It is a well-established principle of federal law that if a n ap pell ate court consider s only one o f a lower court’s alterna

ti ve bases for its holding, affirming the judgment without reaching the altern ative bases, only the bas is that is actually considered can have any preclusive effect in subsequent litigation. Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca I ndians
, 94 F.3d 747, 754 (2d Cir. 1996); see a lso Hicks v. Quaker Oats Co. , 662 F.2d 11 58, 1168 & 1 168 n.6 (5 th Cir. 1981). Moreover, because

the appe llants r est their challenge to the trial court’s findings concerning the perjured nature o f Mount’s testimony e ntirely up on the preclusive e ffect o f th e federa

l district court’s findings, we need not otherwise address the propriety of the tria l court’s ruling.

iii. Harmless Error Even assuming that the trial court violated the appellants’ right to confrontation by admitting Mount’s former testimony, this conclusion does not necessarily require the reversal of the appella nts’ convicti ons. Rathe

r, a viola tion of the right toconfrontation is subject to harmless error analysis in accordance with the standard enuncia ted in Chapman v. Californ ia , 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). See, e.g. , Lilly v. Virg inia , 527 U.S. 116, 139-140, 119 S. Ct. 1887, 1901 (1999)

. Because “[t]he line between har mless and prejudicial error is in direct proportion to the degree of the margin by which the proof exceeds the standa rd required to c onv ict beyond a

reasona ble doubt,” State v. Carter , 714 S.W.2d 241, 248 (T enn. 1986 ); State v. Adkisson , 899 S.W.2d 626, 644 (Tenn. Crim. App. 1994), we turn to examine both the State’s burden of proof at trial and the evidence adduced in satisfaction of that bur den.

Again, the jury foundRickman guilty of the first degree murder of Groseclose’s wife. At the time of

the appe llants’ of fenses, Tenn. Code Ann. § 39-2401 (1975) provided, “If any person of sound memory and discr

etion, unl awfully k

ill[s] an y reason able cr

eature in being, and under the peace of the state, withmalice a forethought, either expr

ess or impl

ied, such person sh all be gui lty of murder.” Malice aforethought was defined a s “the intent to do any unlawf ul act that will likely result in taking the life of another.” Statev. West , 844 S.W.2d 144, 147 (Tenn. 1992). All murders

were deemed m

urder in the seco nd degr

ee unles s “perpetrated by means of poison, lying in wait, or by other kind of wilful, deliberate, malicious, and premeditated killing,” in which ca se the of fense

was enhanced to first degree murder. Te nn. Code Ann. § 39-2402(a) (1977 Supp.); Tenn. Code Ann.17 The trial court declined to instr uct the jury on the offense of felony m urder.

-60- § 39-2403 (1975). 17 As always, the burden was upon the State at theappellants’ trial to prove the premeditation and deliberation necessary to enhance Rickman’s offense to first degree murder. See, e.g. , State v. Brown , 836 S.W.2 d 530, 543 (Tenn. 199 2); State v. Bullington , 532 S.W.2d 556, 560 (Tenn. 1976). In Brown , 836 S.W.2d at 540-541 (emphasis in original), our supreme court offered the following definitions of premeditation and deliberation:

“‘Premeditation’ is the process simply of thinking about a proposed killing before engaging in the homicidal conduct; and‘deliberation’ is the process of carefu ll y weighing such matters as the wisdom of g oing ahead with the proposed killing, the manner in which t h e killing w il l be accomplished, and the consequences which may be visited upo n the kille

r if and w

hen appr ehende d. ‘Delib eration ’ is present if the thin king, i.e. , the ‘pr

emeditat ion,’ is being done in such

a cool mental state, under such circumstances, and for such a period of time as to permit a ‘careful weighing’ of the propose d decision.”

In contras t, the jury

found Gr oseclose guilty of b eing an a

ccessor y before the fac t to the first degree murder of his wife. An acc essory before the fact was def ined as “[a]ny person

who shallfeloniously move, incite, counsel, hire, command, or procure any other person to c om mit a felony.” Tenn. Code Ann. § 39-107 (1975). As indicated earlier in the opinion, in order to convict Grosec lose of being an accessory before the fact to th e first de gree mur

der of hi s wife, th

e State was first require d to prove

that Rickman and/or

Phillip Britt

actually committed the murder. Gervin v. State , 371 S.W.2d 449, 453-454 (Tenn. 1963); Pierce v. State , 168 S.W. 851, 856 (Tenn. 1914); Statev. Barbara Tipton , 1984 Tenn. Crim. App. LEXIS 2760, at *2 (Knoxville, February 29, 1984). The State wasfurther

require d to prove

that Gros eclose s hared in the princ ipals’ int

ent to com

mit first degree murder. State v. Carson , 950 S.W.2 d 951, 954 (Tenn. 199 7); see also Presley v . State , 30 S.W.2d 231, 233-234 (Tenn. 1930); 22 C.J.S. Criminal Law § 138, at 172 (1989). “[P]resence, companionship, and cond uct befo re and a fter the offense are cir cumstanc es from w

hic h one’s participation in the criminal intent may be inferred. ” State v. McBee , 644 S.W.2d 425, 428-429 (Ten n. Crim. App. 1982); see also State v. Jones , 15 S.W.3d 880, 890 (Tenn. Crim. A pp. 1999) ; Statev. Ronald Haynes , No. M2000-002 04-CCA- R3-CD, 2001 Tenn. Crim. App. LEXIS 416, at **12-13 (Nashville, June 1, 2001); State v. Prentiss Phillips , No. W2000-00245-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 182, at **20-21 (Jackson, March 9, 2001), perm. to appeal denied an d recommended for publication , (Tenn. 2001).

In any eve

nt, neithe r Rickma n’s convicti on nor Gr

oseclose ’s conviction could rest upon the uncorroborated testimony of an accomplice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); Sherrill v. State , 321 S.W.2d 811, 814 (Tenn. 1959). “An accomplice is one who ‘knowingly, voluntarily, and with c ommon inten t u nite s with the principal offender in the commission of a crime,’” S tate v. Ja

ckso n , 52 S.W.3d

661, 666 ( Tenn. Crim. App. 200 1), i.e., one subje ct to-61-

ind ictment

for the same offense charged a gainst the principal offender, Pennington v. State , 478 S.W.2d 892, 897-89 8 (Te nn. Crim. App. 1971). In other words, being an accomplice require s something m ore than having guilty knowledge, being morally delinquent, or participating in a related butdistinct crime with the principal offender. Id. In connec tion with these principles, w e have held that an accessory before the fa ct and the a ctual pe rpetra tor or pr incipal in the crime are ac complice s, Boaz v. State , 537 S.W.2d 716 , 718 (Te nn. Crim. App. 1975), whereas an accessor y after the fact and the actual perpetrator or principal a re not, Pennington , 478 S.W.2d at 898.

In thi s case, t

he State r elied in p art upon t

he testimo nies of bo th Phillip Bri tt an d Barton Mou

nt to attain the convictions of Rickman and Groseclose. It was essentially undisputed that both Britt and Mount were ac complices in the murder of Deborah Groseclose

. Cf. State v. Lawson , 794 S.W.2d 363, 369-370 (Tenn. Crim. App. 1990). Nevertheless, the trial court instructed the jury that it was to dec ide whether or not any witness was an accomplice, a nd the court further provided a general instruction on how to evaluate accomplice te stimony. The trial court erred in that it should ha

ve instru cted the

jury as a matter of law that Br

itt and Mount were a

ccomplic es: When it is clea

r and und isputed th at the wit

n e ss participated in the crime, the trial court decides as a question of law whether he or she is an acco mplice. T

he questi on become s one of f act for the jury to decide when the facts are in dispute or susce ptible to different infere nces. In other words, where a w itness de nies involvement in the crime, the question of whether he or she is an ac complice is one of fact to be s ubmitted to the jury with proper instructions from the court on how to consider such testimony. Anderson
, 985 S.W. 2d at 16 (c itations om itted); State v. Jerry McPeak, IV , No. W2001-0076 4-CCA

R3-CD, 2002 Tenn. Crim. App. LEXIS 129, at *14 n.1 (Jackson, February 14, 2002). Notwithstanding the trial court’s error, it was the appella nts’ obligation

to submit a s pecial r

equest
or otherwise object to the trial court’s instruction. Anderson , 985 S.W.2d at 17-18. Moreover, the l ack of a ny signific ant disput e conce rning Brit t’s and Mount’s role s in the ap pellants’ offense s in addition to our subsequent conc lusion concerning the “degree of the mar gin by which the proof exceed[ed] the standar

d requir ed to conv

ict beyond a reas onable

doubt” preclude any relief for the appellants. Carter , 714 S.W.2d at 248.

Because juries make no finding on the record about whether they deem an individual to be an accomplice, we will assume for purposes of this discussion the jury ’s finding that, not only Britt and Mount, but al so Pamela Baker was an acc omplice. Accomplices generally cannot corrobo rate eachother, State v. Stout , 46 S.W.3d 689, 696-697 (Tenn.), cert. denied , __ U.S. __, 122 S. Ct. 471 (20 01); State v. Fowler , 373 S.W.2d 460, 462-463 (Tenn

. 1963); State v. Green , 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995) , albeit a defenda nt’s o wn in culpatory statements can corrobo rate his accomplice’s testimony, Stout , 46 S.W.3d at 696-6 97 ; State v. Anderson , 985 S.W.2d 9, 16-17 (Tenn. Crim. App. 1997) . Thus, the value in presenting the testimonies of multiple accomplices in this case la y in provid

ing to the ju

ry alter natives s hould

it decide against accrediting-62-

one. We are confident in concluding bey ond a reasonable dou b t that, even absent Mount’s (or Baker ’s) testi mony , the jury would hav e accr

edited B ritt’s.

Gen erally speaking , we have

describ ed the qua

ntum of evidence necessa ry t o corroborate an accomplice’s testimony in the following manner :

[T]heremust be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, notonly that a crime has been committed, but also that the defendant is implicated in it; and this independ ent corr oborativ e testimon

y must also include some fact establishing the defe nd ant's ide ntity. This corroborativeevidence may be direct or entirely circumstantial, and it neednot be ade

quate, in and of its elf, tosupport a convicti on; it is sufficient to meet the requ irements o f the rule if it fairly and legitimate ly tends to connect the defenda nt withthe commission of th e crime charged. It is not necessary that the cor roboration extend to every part of the accomplice’s evidenc e. The corroboration need notbe conc lusive, bu

t it is sufficient if this evidence, of itself, tends to connec t the def

endant w ith the co mmission of the offe nse , although the evidence be slight and entitled, when standing alone, to little consideration.

“The entire con d uct of the accused may be looked to for the corroborating circumstances; and if, from those circumstances, the crime may fairly be inferred, the cor roboration is sufficient.” Hawkins v. State
, 469 S.W.2d 515, 520 (Ten n. Crim. Ap

p. 1971)( citationsomitted); see also State

v. Bane , 57 S.W.3d 411, 419 (Tenn. 2001), cert. denied , __ U.S. __ , 122 S. Ct. 92 5 (2002); Bigbee , 885 S.W.2d at 803; Sherrill , 321 S.W.2d at 815. “Evidence which merely casts a suspicion on the accused or establishes that he had an op

portunity to commit the crime

in questio n is inade quate to corrobo rate an accomplice’s testimony.” State v. Adkisson , 899 S.W.2d 626, 644 (Tenn. Crim. App. 1994); see also State v. G

riffis , 964 S.W.2d 577, 589 (Tenn. Crim. App. 1997). Whether sufficient

c or roboration exists is a determination for the jury. State v. Shaw , 37 S.W.3d 900, 903 (Tenn. 2001).

In summary, Britt testified that Groseclose hired him and Rickman to m urder Deborahand intended to pay them, at le ast

in part, with the proceeds of insurance policies on Deborah’s life. Britt recounted in detai l both the extensive planning in which the conspirators engaged and the execution of the resultant murder plan by himself and Rickman. Far more than the req uisite “slight” evidence corroborated this testimony, both establishing the commission of th e charged offenses and connecting each defendant thereto.-63- With respect to the commission of the offenses, for example, Dr. Harlan’ s testimony largely corroborated Britt’s account of the manner in which D eborah died and of the disposal of her body. Scola’s a

nd Wolfe ’s testimo nies likewise corr oborate d Br itt’s a ccount of the disposal of Deborah’s body in addition to his assertion that both he and Rickman wore gloves during Deborah’s murder and while transporting her body to the parking lot of Memphis’ main public library. Indeed, Britt assisted the police in recovering the gloves from a “Union 76 ” service station within a short distance of the ma

in public library. Additiona lly, the po lice’s r

ecover y of Debo rah’s pu rse fro m a Walgr een’s drug stor

e locate d within several bl ocks of th e Grose close hom

e corro borated Britt ’ s account of the conspirators’ efforts to divert suspicion from Grosecl ose, as di d Groseclose’s confirmation to police that credit cards and cash were missing from his wife’s purse and his report to police that, on the day prior to Deborah’s murder and c onsequent disap pearance, she had been followed home from work by a stranger. Also, the records of theFirst Tennessee Bank confirmed Britt’s account of Rickman’s unsuccessful attempt to withdraw money from the Groseclose account using Deborah’s ATM card on the morning of her murder and disappearance.

As to Rickman’s connection to the commission of the first degree murder of Deborah Groseclose, suffice i t to say that his own confession to the police overwhelmingly corroborated Britt’s tes timony. Wi th respect to Groseclose, the evidence cor roborating Britt’s testimony was circumstantial but likewise overwhelming. Specifically, Britt’s assert io n of Groseclose’s involvement

was cor roborat ed by Scr oggins’ a nd Perkins ’ testim onies concerning Groseclose’s status as the beneficiary of insurance policies on De borah’s life amountingto $32,788 a nd his attempt one month p

rior to hiswife’s d

eath to increase

the amoun

t of one of

th ose pol icies. Moreover, the appellant himself confirmed to police that he and his wife were experiencing marital diffic ulties o f such ma

gnitude th at he had

been sle eping in hi s van for severa l nights pri or to Deborah’s murder, and Ann Ma rie Adam s testifie d that Gro seclose was rec ording telephone c alls to and from his home without his wife’s knowledge or c onsent. T he State also presented the testimonies of no lessthan five witnesse s, all with

no appar ent inter est in the outco me of this case, concerning Grosec lo se’s attempts to locate someone willing to murder his wife. Moreover, Jerry Cochran testified that, on the day of Deb o rah’s funeral, Groseclose admitted that he kne w the identity of his wif

e’s murd erers. The rec ords of th

e First Tennessee Bank confirmed that, on June 27, 1977, two days prior

to Deborah’s murder and disappearance, Groseclose withdre w $100 from his bank ac count, and Melville Taylor te stified th at, on th e same day, he loaned Groseclose $50. Also on the same day, according to Mary V an ce, the ostensibly unemployed Rickman paid $100 towardDonnie

Tatum’s rent in five $20 bills. Finally, abundant evidence established Groseclose’s association with the pr

incipal o ffende

rs both prior to and following his wife’s murder. For example, Anne Marie Ad ams testif ied that sh

e saw Mou

nt at the G

roseclo se home

on several occasions prior to Debora h’s murde r and disa ppeara nce and on the day

thereof . Taylor t estified that Mount

was with Grosec lose when Taylor loaned the appellant $50 prior to Deborah’ s murder. Aline Watts testified that, on the day of her daughter’s murder and disappea rance, she observed

both Barton Mount and Phillip Britt at the

appella nt’s home. The appella

nt himself

confirme d that he s poke with

Phillip Britt on the day of his wife’s murder and disappearance. Also, Casper testified that, following the discovery of Deborah’s body, Rickman made sever al attempts to contact Groseclose.18 The appel lant als o ass ert s i n his brie f tha t hi s st atement s t o King were r eleva nt to “r efut e[] t he tes ti mony of Phillip Brit

t re gardi ng a meeti ng.” However, in cha ll enging t he suf fic iency of the evide nce underl ying hi s convi cti on of being an acce ssory be fore the fac t to first degree m urder, the a ppellan t asserts:

Britt stat ed the meeting he t hought took place bet ween Groseclose and Rickman occurred one we ek prior to Mrs. Groseclose’s disap pea ranc e. Both A line W atts .

. . and Gary King . . . tes ti fie d tha t William Gro seclo se w as in K ingsp ort, Ten nesse e on e w eek prior to M rs. Gr osec lose’s d isapp earan ce. In short, the appell ant himself concedes that

the trial court’s exclusi on of the hearsa y evidence atis sue di d not pr eclude King fr om t es ti fy in g co nce rn in g Gr os ec lo se ’s pr es enc e i n Ki ngs por t s hor tl y be fo re hi s wi fe ’s murd er

. More ove r, we note that , in f

act, Britt was uncertai n concerning the timing of the meeti ng referred t o above.
-64- In characterizing the evidence in the a ppellants’ case as overwh elming, we acknowledge both B ritt’s agre ement wit h the State

and Debo

rah’s f amily in ex change

for his testimony and some inconsistencies in Britt’s testimony. However, neither fac t u ndermines the strength of the corroborating evidence that we ha ve attempted to highlight in this opinion.

C. Gary King ’s Testimony Grosec lose additionally argues that the tri al c ourt erred in excluding Gary King’s testimony concerning remarks made by Groseclose to King during the appellant’s trip to Kingsport immediate

ly prior to his wife’s murder. Specific ally, Gro seclose sought tointroduc e his state ments to King that

he “was tired of the crime in Memphis and wanted to move his family to Kingsport” and that he “wastrying to

find employment

and did not seek to borrow money.” Groseclose argue s that his statements were admissible pursuant to the state of mind exce

ption to the

genera l rule excluding hearsay and, moreover, were relevant “to refute wha t Barton Mount had testified to about moving in with Groseclose.” Tenn. R. Evid. 803(3). 18 The State responds : [ I]n order to fit under the state of mind exception Mr. Ki ng woul d have to testify that the defendant told h im he was in Kingsport because he was moving back

to Kingsport. However, the defendant only stated tha

t he was th

in king about moving. The defendant showed no inte ntion of

moving. Ha

d the def endant sa id he was in Kingsport looking for a job and a home, then his statement may have been proper under the state of mind exception. Alternatively, the State asserts that any error was har mless.

Before the trial court and outside the jury’s presence, Grosec lose proffered Gary King’s testimony that, during Groseclose’s visit to Kingsport shortly before his wife’s murder, he made the following remarks to King: “Well, [I’m] trying to get out of Memphis. I’m thinking about maybe moving back up here. The crime rate is high in Memphis. I want to try and to get my fa

mily outof there and moveback to . . . Kingsport.” King adde d that Gro seclose express ed an inte

rest in looking for a job in Kingsport. King concluded that the appellant never asked to borrow mone y from King during the visit.-65- In advocating the introduction of this testimony, Groseclose argued to the trial court that his statem

ents to Kin g were a

dmis sible pur suant to the state o f mind exc eption to th e rule against hearsay and, somewhat more articulately than on a ppeal, noted that the st atements were relevant to establish

whether [Groseclose] was trying to have his wife killed, or whether he was mo ving out of

Memphis ba

ck to King sport.

. . . .

T he state’s witnesses are all saying that he hated Deborah a nd he wantedher

dead. We have a witness whosays he w anted to m ove his family back here; he was going to come up here a nd work with

his family.

Contrary to the appellant’s suggestion in his brief, the trial court ultimately admitted King’s testimony t

hat Groseclose never atte

mpted toborrow money from King. However, the trial court otherwise declined to admit the proffered testimony pursua nt to th e state of mind exception to the hearsay rule. The trial court ruled:

I don’t think it fits under the exception of anexisting me ntal state to prove - - the fact you’re wanting to prove is that he intended to move to Kingspor

t, that’s n ot what thi s man is tes tifying to - - not wha t I heard.

. . . .

A ll I h eard wa s he said t

hat ther e was a c rime prob lem in Memphis and that he would like to move his family out of there, and he was thinking a

bout comin g back to K

ingsport.

. . . .

If it was an i ssue - - if

he had come back to Memphis and said, “We’re moving to Kingsport,” a nd he came back down here and he told people, “We’re movi ng t o Kingspor t,” and th en there was a question of whether that

occurred or not, this, I could conceive, being releva nt. But there’s no indication, other thana he arsay statement-66- that was offe red, tha t that goes to any mental state or state of mind. I don’t think it fits under that exception.

Tenn. R. Evid. 803 (3) provides that t he gene ral rule proscri bing hear sa y do es not exclude the following out-of

-court s tatement : A sta tement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and

bodily health), but notincluding a statement of memory or belief to prove the fact remembered or

believe d unless it relates to the execution, revocation, identification, or t e rms of declar ant’s will. The Advisory Commission Comments to Tenn. R. Evid. 803(3) further provide that, “[c]ombining th[is] hearsay exception with relevancy princ iples, declarations of mental state w ill be admiss ible to prove mental state at issue.” Correspondingly, declarations of mental state, such as an intent to engage in certa

in conduc t, will be a

dmissible to prove conduct

consistent with that mental state. Id. ; cf. State v. Hailey , 658 S.W.2d 547, 552 (Tenn. Crim. App. 1983)(citing Mutual Life Ins. Co. v. Hillmon , 145 U.S. 285, 295-296, 12 S. Ct. 909, 912-913 (1892)).

In addressing Groseclose’s complaint, we find it useful to first distinguish from the instantcase

several scenarios in which Tenn. R. Evid. 803(3) may have no application. For example, one noted authority has observed:

In order for

Rule 803(3) to apply, the declarations of mental condition should expressly assert the declarant’s mental state. . . . Many times

a statement does not literally assert the decl arant’ s mental st

ate when offered to prove that mental state. If so, the statement should be admitted as nonhearsay because it is not admitted to prove its truth. Neil P. Cohen et al., Tennessee Law of Evidence § 8.08(3)(a), at 8-71 (LEXIS Law Publishing 4 th ed. 2000). In other words, “[c]ircumstantial declar ations are nonhearsay, . . . while direct evidenc e of state of mind is admissible under Rule 803(3).” Id. at 8-72 n.266. In this case, the appellant was conced edly attempting to introduce his out-of-court statements to King as circumstantial evidence of his conci liatory f

eelings to ward his wif

e. Neve rtheless , the appe

llant’s st atementsexpress ly asserted a mental s tate, i.e ., his cont emplation of moving t

o Kingspor

t wit h his fami ly and his interest in searc hing for e mployment in Kingsport. In other words, the appellant was attempting to
use express assertions of one mental state as circumstantial evidenc e of ano ther. Moreover, the expressassertio ns of a me ntal state did not qualify as nonhearsay because they only permitted the desiredinference if true, i.e., if in fact G roseclo se was c ontempla

ting moving

to Kingspo

rt with his family and was inte

rested in search ing for e mployment in Kingspor

t.

Additionally, at least one court interpreting the identical federa l counterpart to Tenn. R. Evid. 803(3) has held that, while positive statements of a declarant’s future intent or de sign are19 The appellan t does no t rest this co mp laint up on c ons titution al gro und s. Cf. St at e v. Br own , 29 S.W.3d 427,

432 (Ten n. 20 00) . Reg ardle ss, we note that the result o f ou r harm less erro r ana lysis is the s ame under Tenn. R. App. P. 36(b) and T enn. R. Crim. P. 52(a) and under Ch apm an v . Califo rnia , 386 U.S. 18, 24, 87 S. Ct. 824, 828 (196 7).

-67- genera lly admissible

to show tha

t the dec larant a

cted in c onformity

with his inte

nti on or design, uncerta in or equivocal statements or statements of mere desire may not be admissible for that purpose. See, e

. g. , United States v. Hogan , 886 F.2d 14 97, 1511- 1512 (7th Cir. 1989)(citing Hillmon , 145 U.S. at 295, 12 S. Ct. at 912). In excluding Groseclose’s out-of-court stateme nts, the trial court se emingly a

dopte d th is limitation. We note that, even if statements of intent or design neednot be so c oncrete

under Te nn. R. Evid. 803(3) in

order to prove action in conformity therewith, certain ty and spec ificity undeniably enhanc e the probative value of the statements. 2 Kennet h S. Broun et al ., McCormi ck on Evidence§ 275, at 223 (John W. Strong ed.,1999) . Never theless, Grosec lose was not int

roducing his statem

ents for the purpose of

proving th at he in f

act move d to Kingsport with his family or that he in fact searched f or a job in Kingsport but instead for the purpose of proving h is c onciliato ry feelings towar

d his wife

at a time w

hen he wa s purport

edly moving, inciting, counseling, hiring, commandi ng , or procuring Rick man and Br

itt to murde

r his wife, Tenn. Code Ann. § 39-107, and contemplating living with Mount in Memphis thereafter. Cf. United States v. Hartmann , 958 F.2d 77 4, 783 (7th Cir. 1992)(“[W]e previously ha v e recognized that hearsay is admissib le under 803(3) in order to establish a decea sed decl arant’ s state of mind that is inconsistent with the declarant voluntarily taking certain action . . . .”).

In short, we concludethat Groseclose’s statements concerning his desire to move wit h his family to Kingsport and find a job in that city werestatements of his then existing state of mind within the mean ing of Ten

n. R. Evid. 8 03(3) and, to the extent they circumst antially e stablishe d his conciliatory feeling s toward h is wife, were relevant to the issue of whethe r he was then planning her murder. Grosec lose’s sta tement co ncernin g the cri me rate in Memphis, however, was a statement of belief and, therefore, inadmissible. Cf., e.g.
, United States v. Fontenot , 14 F.3d 1364, 1371 (9 th Cir. 1994)(“‘The state-of-mind exception does not permit the witness to relate any of the declarant’s statemen ts as to why he held the particular state of mind, or what he might have believe d that would have induced the state of mind.”). In any event, we agree with the State that any error by the trial court was ha rmle ss. 19 In particular, we note that the appellant’s statements wer e self-serving and entirely consistent with Britt’s testimony that the conspirators planned Deborah’s murder so as to divert suspicion away from Groseclose.

D. Sufficiency of the Evidence Finally, Grosec lose cha

llenges th

e s ufficie ncy of the

evidenc e underl

ying his conviction of being an accessory before the fact to first degree

murder. The State disagrees, arguing that it overwhelmingly established the appellant’s guilt. In order to successfully challenge the sufficiency of

the evidence supporting his conviction, the appellant must demonstrate to this court that no “rat ional trier of fact” could have found the esse ntial elements of his offense beyond a

reasona ble doubt. Jackson v. Vi rginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2 789 (1979 ); State v.-68-

Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the Stateis entitle d to the strongest legitimate view of the evidence and all reasonable infe rences which may be drawn therefrom. State v. W illiams , 657 S.W.2d 405, 410 (Tenn. 1983). Q uest ions concerning the cre dibilityof witnesses and the weight and value to b e given th

e evidence, as w ell

a s all factual issues raised by the evidence, are resolved by the trier of fact, and not the app ellat e courts. State v. Pr

uett , 788 S.W.2d 559, 561 (Tenn. 1990).

The above sta

ndards of review a pply to con

victions b ased upo n dir ect evid ence, circumstantial evidence, or both. State v. Carruthers , 35 S.W.3d 516, 557 (Tenn. 2000), cert denied , 533 U.S. 953, 121 S. Ct. 2600 (2001). In the trial court, however, when the State relies wholly upon circumstantial evidence to secure a defenda nt’s conviction, it must establish tha t the ev idence i s “inconsistent

with his innocence, and that it excludes every other rea sonable theory or hypothesi s except that of guilt.” State v. Gilliland , 22 S.W.3d 266, 275 (Tenn. 2000). Contrary to Groseclose’s assertion in his brief, the State’s proof in t his case was both direct and circumstantial. Cf. State v. Coulter , 67 S.W.3d 3, 68-69 (Tenn. Crim. App.), perm. to appeal de nie d , (Tenn. 2001). Even so, implicit in our discussion of the harmless effect of Mount’s former testimony is our conclusion that the remaining evidence overwhelmingly and unerringly pointed the finger of guilt to the appellant “‘to the ex clusion o f all others beyond a reasonable doubt.’” Gilliland , 22 S.W.3d at 275. The appellant is not entitled to relief.

IV. Conclusion

Having thoroughly reviewed the record in this case, we note that, while the trial court recorded on the appellants’ judgments of conviction their receipt of credit fo r time served in the Shelby County Jail prior to trial, the court neglected to record the appellants’ re ceipt of credit for time served in the Tennessee Department of Corr ection. Tenn. Code Ann. § 40-23-101(c) (1997);

see also Marsh v. Henderson , 424 S.W.2d 193, 195 (Tenn. 1 968); Stubbs v. Sta te , 393 S.W.2d 150, 154 (Tenn. 1965) . Accordingly, we remand this case to the trial cou rt for corr ection of the judgments to refle ct the re quisite cr edit. We affirm t he judgme

nts in all ot

her res pects.

___________________________________ NORMA McGEE OGLE, JUDGE