                     IN THE SUPREME COURT OF TENNESSEE
                                AT NASHVILLE
                              May 23, 20000 Session

           STATE OF TENNESSEE v. GERALD LEANDER HENRY

                 Appeal by Permission from the Court of Criminal Appeals
                           Criminal Court for Davidson County
                         No. 92-D-2010    Seth W. Norman, Judge



                  No. M1995-00005-SC-R11-CD - Filed December 21, 2000


We granted this appeal to determine whether the trial court erred in admitting statements made by
the co-defendant following the arrest of the defendant and the co-defendant for first-degree murder,
attempted first-degree murder and related offenses. The Court of Criminal Appeals concluded that
although the conspiracy to commit the offenses had ended, the co-defendant’s statements were made
during the course of and in furtherance of a separate conspiracy to conceal the offenses and were
admissible pursuant to the co-conspirator exception to the hearsay rule set out in Tenn. R. Evid.
803(1.2)(E). After reviewing the record, we conclude that the co-defendant’s statements were made
after the conspiracy had ended and, therefore, were not admissible under Tenn. R. Evid. 803(1.2)(E).
We further conclude, however, that the error was harmless, and we affirm the judgment of the Court
of Criminal Appeals.

            Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of
                                Criminal Appeals affirmed.

E. RILEY ANDERSON, C. J., delivered the opinion of the court, in which FRANK F. DROWOTA, III,
ADOLPHO A. BIRCH, JR., AND JANICE M. HOLDER, JJ., joined. WILLIAM M. BARKER, J., not
participating.

Jeffrey A. DeVasher, David M. Siegel, and Hollis I. Moore, Jr., Assistant Public Defenders,
Nashville, Tennessee, for the appellant, Gerald Leander Henry.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J.
Brand, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Kymberly
Haas, Assistant District Attorney General, for the appellee, State of Tennessee.



                                            OPINION
                                        BACKGROUND

        On July 16, 1992, the victims, William Weaver and Larry Harrington, were installing alarms
in a church dormitory while working for a security firm in Nashville, Tennessee. Weaver was eating
lunch inside a van in the church parking lot when the van was approached by the defendant, Gerald
Leander Henry, and a co-defendant, Sean O’Brien. O’Brien removed a pistol from a duffel bag and
ordered Weaver from the van and into the dormitory where they encountered Harrington.

         Once inside the dormitory, Weaver and Harrington were ordered to lie on the floor face
down. Henry bound Harrington’s hands and feet with wire. Harrington heard a crash, followed by
Weaver moaning. Henry then tied Weaver’s hands and feet. O’Brien fired three shots, striking each
victim once in the back of the head. Weaver was killed. Harrington miraculously survived, managed
to free himself, and called 911 for help. Harrington was hospitalized for 13 days and was treated for
serious, life-threatening injuries. Harrington had “no doubt” that Henry and O’Brien were the men
who had committed the crimes and later testified as to the foregoing facts at trial and identified
Henry.

       After the shootings, O’Brien and Henry fled from the scene in the victims’ van. When
spotted by law enforcement officers near Jackson, Tennessee, O’Brien, who was driving the van,
attempted to outrun the officers. Driving at speeds of up to 100 miles per hour, he ran a red light,
forced vehicles off the road, and evaded a police road block. When the van was finally stopped,
Henry got out of the vehicle and complied with officers’ commands. O’Brien refused to surrender
and had to be pulled from the van by officers.

        Following his arrest, Henry was advised of his Miranda rights and made a voluntary
confession. He told officers that he met O’Brien only a day or two before the shootings and that they
intended to go to California together but did not have a vehicle. When they approached the white
van in the church parking lot, O’Brien used a .45 caliber pistol to force the victim out of the van.
Henry told officers that he did not know O’Brien had a pistol. Henry admitted that once inside the
dormitory, he tied and bound the victims before O’Brien shot them. Henry further stated that he did
not know that O’Brien was going to shoot the victims. He admitted, however, that once he and
O’Brien fled from the scene in the victims’ van and were being pursued by police, he threw the .45
caliber pistol out of the van. Henry later accompanied officers to the location where the gun had
been discarded.

         After Henry and O’Brien were both arrested and after Henry had made his statement to
police, they were placed together in the same interview room. A hidden camera and recording device
had been installed in the room in order to videotape and record their conversation. Henry and
O’Brien had a 27-minute conversation, a large portion of which was whispered or was otherwise
unintelligible on the videotape. At several points, both O’Brien and Henry looked around the room
and under the table and chairs, as if looking for a hidden microphone.




                                                -2-
         The audible portions of the videotape are summarized as follows: Early in the conversation,
O’Brien stated that he did not intend to shoot anyone; that the gun went off because he was nervous
and scared; and that he was “sticking with his story” that the van, which he stole, already had the
keys in it. O’Brien told Henry, “Don’t worry; I’m not going to say you did it. . . . I don’t want you
to do it to me.” After asking what Henry had told the police, O’Brien said, “Don’t say anymore. .
. .[Y]ou didn’t see what happened.” Henry appeared to say that he would be quiet. O’Brien
reiterated that Henry had heard shots but did not see what happened. Henry replied that he “wished
he had dreamed it” but that the police had found the gun.

        The discussion then turned to the evidence and other matters. O’Brien said that Henry’s
fingerprints were on the gun, and Henry agreed. O’Brien mentioned the death penalty and indicated
his belief that only a few states, including Tennessee, used the death penalty. O’Brien recounted that
he had a history of mental illness and asked if Henry did as well. Henry appeared to respond in the
affirmative. O’Brien speculated that his mental illness might prevent a charge of first-degree
murder. O’Brien said that he had been charged with first-degree murder, attempted first-degree
murder, and assault with a vehicle, but he denied that he intended to run over any police officers
when evading the roadblock.

       At this point in the conversation, O’Brien told Henry, “Don’t tell ‘em anything I did; just tell
‘em stuff that you did, okay?” O’Brien added,

               I’m not going to say anything you did. Only the stuff I did, ‘cause
               that’s all they’re worried about. They’re not worried about what you
               did. You can tell ‘em your story. . . . You don’t have to say ‘Sean did
               this.’

Henry appeared to nod in response but did not respond audibly. O’Brien concluded, “This way we
don’t get ourselves in trouble. Or we get ourselves in trouble, and I give it to you, you give it to me.
I’m already looking at twenty to forty years. . . .”

         After several inaudible or unintelligible moments, the conversation returned to the offenses.
O’Brien said that the surviving victim untied himself and called the police. He then said that he
should have tried to evade the police at the last roadblock. O’Brien told Henry, “All we wanted was
the car . . ., you know that.” Then he added, “I don’t even know why I did that.” O’Brien discussed
the number of shots that had been fired and said that he “didn’t even look” and “didn’t want to look.”
He then demonstrated that he looked away as he fired shots at the victims. O’Brien wondered aloud
what the victim’s family was doing and then referred to himself as a “cold-blooded killer.” He
reiterated that the “gun went off” because he was “scared.” When Henry indicated that they “could
have left [the gun] there,” O’Brien responded that the police would have found it. Near the
conclusion of the conversation, Henry stated, “We got our story together.” O’Brien once again said
that Henry did not have to mention his name. The videotape concludes with O’Brien stating, “You
know they’re listening.”



                                                  -3-
         The videotaped conversation was to be offered as evidence by the State against defendant
Henry at trial. Henry’s counsel moved to exclude the videotaped statement prior to trial, arguing,
among other grounds, that O’Brien’s statements were inadmissible hearsay. The prosecution argued
that the videotape, including the statements made by O’Brien, were admissible under Tennessee Rule
of Evidence 803(1.2)(E), the “co-conspirator” exception to the rule excluding hearsay statements.
The trial court admitted the entire videotape after concluding that “the conspiracy had not ended at
that point in time.”

        The jury convicted Henry of first-degree felony murder, attempted first-degree premeditated
murder, especially aggravated kidnapping, especially aggravated robbery, and two counts of
especially aggravated burglary. Henry received a life sentence for first-degree felony murder, 20
years for attempted first-degree premeditated murder, 20 years for especially aggravated kidnapping,
20 years for especially aggravated robbery, and 10 years for each especially aggravated burglary.
The sentences were to be served concurrently to one another but consecutively to the life sentence,
for an effective sentence of life plus 20 years.

        On appeal, the Court of Criminal Appeals reduced one of the convictions for especially
aggravated burglary to aggravated burglary, but affirmed the remaining convictions and sentences.
The court held that although the original conspiracy between Henry and O’Brien ended upon their
arrest, O’Brien’s statements were made during a separate conspiracy to conceal the crimes they had
already committed and were, therefore, admissible pursuant to Tenn. R. Evid. 803(1.2)(E).1

        We granted this appeal to address the application of Tenn. R. Evid. 803(1.2)(E), the co-
conspirator exception to the hearsay rule, and to determine whether the trial court abused its
discretion in admitting the statements made by O’Brien during the videotaped conversation between
Henry and O’Brien.

                                                   ANALYSIS

       Hearsay is a “statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). A
hearsay statement is not admissible except as provided by the rules of evidence or otherwise by law.
Tenn. R. Evid. 802.

        There are numerous exceptions to the hearsay rule, however, where statements that constitute
hearsay bear sufficient indicia of reliability and trustworthiness to warrant admission. See Neil P.
Cohen et al., Tennessee Law of Evidence, § 801.1, at 490-91 (3rd ed. 1995). The exception at issue
in this case is that of “a statement by a co-conspirator of a party during the course of and in
furtherance of the conspiracy.” See Tenn. R. Evid. 803(1.2)(E). The rationale for this exception is


         1
                 The Court of Criminal Appeals also correctly held that Henry’s statements on the videotape were
properly admitted as a party’s own admissions . See Tenn. R. Evid. 803(1.2)(A). Henry does not contest this ruling on
appeal.

                                                        -4-
the principle of agency, under which each conspirator is bound to the actions and statements made
by other conspirators during the course of and in furtherance of a common purpose. See Tennessee
Law of Evidence, § 803(1.2).6, at 521.

        Accordingly, for a statement to be admissible under this exception, the prosecution must
establish: 1) that there is evidence of the existence of a conspiracy and the connection of the
declarant and the defendant to that conspiracy; 2) that the declaration was made during the pendency
of the conspiracy; and 3) that the declaration was made in furtherance of the conspiracy. See
Tennessee Law of Evidence, § 803(1.2).6, at 521-22. These requirements must be established by
a preponderance of evidence. See State v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1993).

       The dispositive issue in this case concerns the second requirement: whether O’Brien’s
statements were made during the course of the conspiracy with Henry. On appeal, Henry contends
that O’Brien’s statements were made after the conspiracy had ended, inasmuch as he and O’Brien
had been arrested for the offenses and he (Henry) already had confessed his involvement in the
crimes. The State maintains that O’Brien’s statements were admissible because a conspiracy under
Rule 803(1.2)(E) includes declarations made by conspirators regarding concealment of the offenses.2

        This Court discussed the “co-conspirator” exception in State v. Walker, 910 S.W.2d 381
(Tenn. 1995). In that case, the defendant was convicted of murder and robbery and argued on appeal
that the trial court had erred in admitting statements made by co-conspirators after the offenses had
occurred. We said that “a conspiracy is, in general terms, a combination of two (2) or more persons,
by concerted action, to accomplish some criminal or unlawful purpose.” Id. at 384. In discussing
the scope of Rule 803(1.2)(E), this Court said:

                   For a statement of the co-conspirator to be admissible it must have
                   been made “during the course of” the conspiracy which means that
                   the conspiracy must have been ongoing at the time the statement was
                   made. If the conspiracy had not yet begun or had ended when the
                   statement was made, the declaration is not admissible under this
                   hearsay exception, although it may still be admissible under some
                   other exception . . . .

State v. Walker, 910 S.W.2d at 385 (emphasis added).

       Our analysis in Walker was predicated upon several early decisions of the Tennessee
Supreme Court. In Owens v. State, the Court stated the general rule that “[a]ll acts or declarations
of conspirators, or of any of them, may be given in evidence against all, from the time the conspiracy


         2
                   The State maintains that this is a general rule followed b y numerou s jurisdictions. See, e.g., State v.
Flores, 595 N .W.2d 860, 86 6 (Minn . 1999); People v. Thomas, 687 N .E.2d 89 2, 902 (Ill. 1 997); State v. Cor nell, 842
P.2d 39 4, 398 (O r. 1992) ; Duffy v. State, 416 S.E.2d 734, 735-36 (Ga. 199 2); State v. Pizz ella, 723 S.W.2d 384, 388
(Mo. 1 987); Spears v. S tate, 660 S.W.2d 913 , 918 (Ark. 1983).

                                                            -5-
had its origin until its design has been consummated, or until it is abandoned.” 84 Tenn. 1 (1885).
Similarly, in Sweat v. Rogers, the Court stated:

                   Care must be taken that the Acts and Declarations thus admitted be
                   those only which were made and done during the pendency of the
                   criminal enterprise and in furtherance of its objects. If they took
                   place at a subsequent period, and are therefore merely narrative of
                   past occurrences, they are, as we have just seen, to be rejected.


53 Tenn. 117, 120 (1871) (emphasis added) (citation omitted); see Snowden v. State, 66 Tenn. 482
(1874) (“[W]hen the common purpose is at an end, whether by accomplishment or abandonment,
no one of the conspirators is permitted by the subsequent act or declaration of his own to affect the
others.”).3

         Applying these rules to the facts in Walker, we carefully reviewed the facts and
circumstances of three statements that had been admitted by the trial court on the basis that they
pertained to concealment. We concluded that the statements had been made after the commission
of the offenses and were not made in the course of or in furtherance of the conspiracy. See State v.
Walker, 910 S.W.2d at 385-86. We also observed that one of the statements was merely a
“narrative” statement of past conduct that was not made in the course of and in furtherance of the
conspiracy. Id. at 386. We held, however, that the error in admitting these statements was harmless
in light of the overwhelming evidence of the defendant’s guilt. Id. at 387-88.

       In our view, Walker clearly stands for the proposition that there is no bright-line test or
precise definition for determining whether a statement has been made during the course of the
conspiracy. The commission of the offense that was the goal of the conspiracy does not necessarily
end the conspiracy, nor does it preclude the possibility that the conspiracy encompassed later
statements regarding concealment of the offense. See State v. Walker, 910 S.W.2d at 385.4 At the
same time, the commission of the offense also does not imply that the conspiracy automatically
included all later statements pertaining to the concealment of the offense. See State v. Walker, 910
S.W.2d at 386.


         3
                    Given our discussion of these principles in Walker as they relate to the application of the evidentiary
rule, we agree with the Court of Criminal Appeals’ conclusion, as do both the defendant and the State, that the statutory
offense of conspira cy does no t control the ap plication of the evidentiary rule . Indeed, the statute provides that “[n]othing
in this provision is inte nded to m odify the evid entiary rules allow ing statements o f co-consp irators in furtherance o f a
conspiracy.” Tenn. Code Ann. § 39-12-103(g).

         4
                   As the parties observe, we stated in Walker that Tenn. Code Ann. § 39-12-103 “totally abrogated” the
statement in State v. Crabtree, 655 S.W.2d 173 (Tenn. Crim. App. 1983), that “a conspiracy may continue after the crime
has been completed for, among other things, the concealment of the crime or to prevent witnesses from testifying.” State
v. Walk er, 910 S.W.2d at 385. W e clarify this statement to mean only that the definition alone does not control the
evidentiary issue of whether a sta tement has b een mad e during the c ourse of the c onspiracy.

                                                             -6-
        The United States Supreme Court has also concluded that there are limits in determining
whether a statement has been made during the course of a conspiracy. In Krulewich v. United States,
the Court rejected the argument that accomplishment of the initial criminal objectives of a conspiracy
implicitly resulted in a “subsidiary phase” of the conspiracy for the purpose of concealment. 336
U.S. 440, 443, 69 S. Ct. 716, 718, 93 L. Ed. 790 (1949); see also Lutwak v. United States, 344 U.S.
604, 618, 73 S. Ct. 481, 489, 97 L. Ed. 593 (1953) (“[T]he declarations of a conspirator do not bind
the co-conspirator if made after the conspiracy has ended.”). In short, the commission of the offense
does not imply an agreement to conceal the offense, given the risk that after the commission of the
crimes, each co-conspirator may act in his or her self-interest. In such circumstances, where there
is no longer a common purpose, statements may lack the reliability that serves as the basis for the
“co-conspirator” exception.

       Accordingly, in the absence of a bright-line test, we conclude that Tenn. R. Evid. 803(1.2)(E)
requires that a court examine all of the factors and circumstances of the case. The Supreme Court
of Minnesota stated:

               Generally, a conspiracy to conceal the commission of the charged
               crime may not be automatically implied to permit the use of hearsay
               statements made by co-conspirators. . . . [T]he court should analyze
               the facts of the case to determine if in fact there was an agreement to
               conceal, to determine the closeness in time of the concealment to the
               commission of the principal crime, and to determine the reliability of
               these statements.


State v. Buschkopf, 373 N.W.2d 756, 764 (Minn. 1985). A court must keep in mind that the
purpose of the rule is to ensure the reliability and trustworthiness of the statements sought to be
admitted.

        In this case, after the victims had been shot, Henry and O’Brien fled from the scene in the
victims’ van. They traveled west from Nashville to Jackson, Tennessee, which was consistent with
Henry’s statement that they had stolen the van to go to California. When the van was spotted by law
enforcement officers, O’Brien drove the van at high speeds and evaded a roadblock in an effort to
avoid apprehension. In the midst of the chase, Henry threw the murder weapon out of the van. It
is obvious that Henry and O’Brien at this point were still acting in furtherance of a common purpose
and that statements made by either of them at that time likely would have been during the course of
the conspiracy.

       The videotaped conversation between O’Brien and Henry, however, occurred approximately
seven hours after they were arrested and nine hours after the offenses were committed. The State
maintains that the conspiracy was ongoing because O’Brien and Henry discussed the offenses, the
versions they could tell police, and ways to minimize their culpability. By that time, however, both
Henry and O’Brien had been arrested and charged with the offenses. Moreover, Henry already had


                                                 -7-
given a confession to officers in which he admitted his involvement in the shooting of the victims;
in the robbery of the van; in the flight from the scene; and also his disposal of the weapon. Henry
had also led police officers to recover the weapon that he had thrown from the van when attempting
to elude police.

        The State nonetheless asserts that the statements were reliable because both Henry and
O’Brien were the participants in the conversation. Our review reveals, however, that the videotaped
conversation was dominated by O’Brien and consisted almost entirely of his statements and his
concern that Henry not tell the police what he, O’Brien, had done. O’Brien repeatedly remarked on
his participation in the crimes and the potential punishment he faced as the shooter of the victims.
 O’Brien said several times that Henry did not have to use O’Brien’s name and did not have to tell
officers what O’Brien had done. Although O’Brien stated that he, in turn, would not tell the police
what Henry had done, it is significant that Henry had already confessed. Moreover, although Henry
appeared to respond to O’Brien in the affirmative a few times, the vast majority of Henry’s responses
are inaudible or unintelligible.

        We do not disagree with the State’s contention that a conspiracy may extend to statements
concerning the concealment of the offenses.5 None of the cases cited by the State, however, involve
facts similar to the present case. At the time of the videotaped conversation Henry and O’Brien had
already committed the offenses, fled the scene, and eluded the police. Both had been arrested and
charged for the offenses. Finally, Henry had already confessed to his involvement and had assisted
the police in recovering the weapon. Indeed, several of the cases cited by the State stress these very
types of distinctions in determining whether statements regarding concealment were made during
the course of the conspiracy. See State v. Flores, 595 N.W.2d 860, 866 (Minn. 1999) (statements
were made after the offense but before discovery of the crime or arrests); People v. Torres, 687
N.E.2d 892, 902 (Ill. 1997) (statements were made after the offense but before disposal of the murder
weapon).

        Accordingly, we hold that O’Brien’s statements were made after the conspiracy had ended
and, therefore, were not made during the course of the conspiracy as required for admissibility under
Tenn. R. Evid. 803(1.2)(E). In our view, a finding that a conspiracy still existed and that the
statements were made during the course of the conspiracy under the facts of this case would stretch
Rule 803(1.2)(E) beyond its intended scope and would not ensure that statements admitted under this
hearsay exception bear sufficient indicia of reliability. In simply concluding that the conspiracy was




         5
                  In fact, neither the defendant nor the State in this case argued in favor of the “second-conspirac y”
approach used by the C ourt of Crim inal Appe als. We agree that such a distinction is artificial and not helpful as it begs
the issue of whether statements made during an a lleged “second consp iracy” may be used to pro ve the charged offenses.
Moreover, our analysis in Walker indicated that even if a separate conspiracy to concea l was said to ex ist, the statements
made during the course of such a conspiracy are not adm issible for that pu rpose. See State v. Walker, 910 S.W.2d at
386.

                                                            -8-
ongoing without considering the scope and purpose of the rule, the trial court abused its discretion
in admitting O’Brien’s statements.6

       Having concluded that the trial court erred, we, however, agree with the Court of Criminal
Appeals’ conclusion that the error was harmless under the facts of this case. The substance of
O’Brien’s statements regarding the offense was established at trial through other means. Moreover,
Henry’s own confession detailed his association with O’Brien; his involvement in the robbery and
the shootings; his flight from the scene with O’Brien after the shootings; and his disposal of the
murder weapon while fleeing from the police. Finally, the surviving victim identified Henry and
described his role in the offenses.

        Henry nonetheless argues that the videotaped statements were used to link him to O’Brien,
the “cold-blooded” killer, and that this prejudiced his defense that he lacked the intent to commit the
crimes and was merely a facilitator of the offenses. There was no question, however, regarding
Henry’s role in the offenses. Henry fully participated in the robbery and the shootings. He tied and
bound both victims before they were shot. He fled the scene with O’Brien in the stolen van, and he
disposed of the weapon as they tried to elude police. The videotape reflects that O’Brien did nearly
all of the talking, repeatedly incriminating himself as the shooter and suggesting ways in which
Henry could minimize O’Brien’s role. In contrast, Henry’s responses were often inaudible or
unintelligible. The videotape gives support to Henry’s defense, inasmuch as O’Brien appeared to
be the leader in the offenses. When viewed against the evidence of Henry’s guilt, we conclude that
the error was harmless and does not constitute reversible error.

                                            CONCLUSION

        We conclude that under the circumstances of this case, the co-defendant’s statements were
not made during the course of the conspiracy and that the prosecutor failed to establish a foundation
for the admission of the statements pursuant to the co-conspirator exception in Tenn. R. Evid.
803(1.2)(E). We further conclude that the error was harmless. Accordingly, we affirm the judgment
of the Court of Criminal Appeals. It appearing that the appellant is indigent, costs of the appeal shall
be taxed to the State.

                                                          ___________________________________
                                                          RILEY ANDERSON, CHIEF JUSTICE




         6
               The State does not argue that a foundation for admissibility was established through some other
exception .

                                                    -9-
