Evans v. State , 1977 Tenn. Crim. App. LEXIS 318 ( 1977 )

GALBREATH, Judge,

concurring.

I concur in the result reached in Judge O'Brien’s exhaustive opinion, although I agree with appellant, Emmit Evans, that he was denied the right to confront his co-defendant Marion Smith, concerning statements by Smith implicating Evans, as recounted by the witness Valerio. That these statements were made as part of an alleged conversation between the two defendants should not, it seems to me, take them out of the Bruton rule. Whatever Evans said, of course, would be admissible. What Smith said should not, as I see it.

However, I would hold the error harmless in view of the other independent and competent evidence of Evans’ participation in the murder. I am convinced beyond a reasonable doubt that the complained of testimony did not effect the verdict. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1964); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).