concurring and dissenting.
I concur in the majority’s decision that the Middhbrooks error in this ease requires a remand for resentencing. I also concur in the majority’s finding, but not its rationale, that the statements of the defendant’s two co-defendants were not admissible under the co-conspirator exception to the hearsay rule. I dissent from the majority’s conclusion that the error in admitting the co-defendants’ *401statements was harmless error. I also disagree with the view expressed in the concurring opinion that review pursuant to Rule 52(b), Tennessee Rules of Criminal Procedure, is precluded. I would reverse the conviction and remand the case for a new trial on the issue of guilt.
Inadmissible Hearsay Evidence
The error which, in my view, requires the reversal of the conviction is the admission of four out-of-court statements made by co-defendants Danny Branam1 and Ernest Walker2. The trial court admitted the hearsay evidence under the exception for declarations made by co-conspirators. The defendant contends that the exception is not applicable because the statements were made almost two years after the offenses were committed and long after the conspiracy among the defendants had terminated. The majority finds error but saves the conviction by finding the cumulative errors harmless. The concurring opinion finds that the defendant’s counsel, as a tactical maneuver, deliberately allowed the hearsay statements, in which the defendant is identified as the trigger man at the scene of the homicide, to be admitted into evidence, and that the defendant, therefore, cannot rely upon the error on appeal.
In this ease, whether the defendant was present at the scene of the crime was an important issue on guilt or innocence; the identity of the person who shot the victim was the critical issue on punishment. Inadmissible hearsay evidence placed the defendant, Tommy Joe Walker, his brother, Ernest Walker, and their nephew, Danny Bra-nam, at the scene of the robbery and murder. This testimony was given by Naomi Elliott, sister of the Walker brothers and the State’s essential witness, and her husband, Ray “Spec” Elliott, the owner of the automobile and weapon used in the commission of the crimes.
A brief review of the evidence shows the importance of the hearsay erroneously admitted. It was substantially more than mere “corroboration of defendant’s own admissions.” Majority opinion, p. 386.
Ray and Naomi Elliott, who also were suspects in the case, testified that on the date of the murder, July 22, 1987, Tommy Joe Walker, Ernest Walker, and Danny Bra-nam borrowed Ray Elliott’s 1980 Fleetwood Cadillac and took, without Elliott’s permission, his 9 mm. handgun for the stated purpose of going to Sweetwater “to try to make some money.” Later that night, Elliott’s automobile, occupied by three men, one of whom, according to witnesses, resembled Danny Branam, was parked at the victim’s place of employment in Sweetwater, a livestock market owned by the victim’s family. Shortly before the victim left the market for her residence in Knoxville, Elliott’s automobile was seen leaving its parking place at the market. The hearsay statements, pieced together, are evidence that when the victim arrived at her residence, Tommy Joe Walker, Ernest Walker, and Danny Branam were waiting for her. She resisted the robbery and was shot several times with Elliott’s weapon.
The majority finds that the trial court erred in admitting, as part of the State’s evidence-in-chief, four out-of-court statements made by Ernest Walker and Danny Branam to Naomi Elliott, which together indicate that the defendant was the person who fired the fatal shots. The majority in ruling the hearsay evidence harmless, bases the conviction on the testimony of Danny Branam’s brother, Jackie Lynn Dawson; Peter Talarieo, one of the defendant’s fellow inmates at the Tennessee State Penitentiary in Pikeville (Brushy Mountain); and Terry Bowling, a convicted felon and friend of the defendant and Ray Elliott. None of these three witnesses gave any direct evidence regarding the crime. Each testified that the defendant confessed to him that he shot the victim. The majority’s view that the inadmissible hearsay is harmless, is at odds with the finding by the trial court. On the motion *402for new trial, the trial judge stated that the hearsay statements made by Danny Branam were the “heart and [soul] of the ease.” Yet, the majority finds beyond a reasonable doubt that it did not affect the verdict.
The statement found by the trial judge to be critically important was tape recorded. The recording was of very poor quality. Four transcripts were made of the tape. None of the transcripts were the same. The hearsay statement as reported in the first three transcripts did not definitely incriminate the defendant. However, the fourth transcript, which was prepared by the prosecuting attorneys, places the defendant at the scene of the crime. Defense counsel used the non-incriminating version throughout the trial until the State’s critical witness, Naomi Elliott, was called to testify. A few minutes prior to her taking the stand, the prosecuting attorney handed defendant’s counsel the revised version. The record shows dramatically that defendant’s counsel was not aware that the transcript had been revised until the prosecution referred to the incriminating portion several times in rebuttal closing argument.3
This first and most prejudicial of the inadmissible statements was a recording of the conversation between Branam and Naomi Elliott made nearly two years after the murder while Branam was incarcerated at Brushy Mountain on other charges. At that time, Ray Elliott had been charged with being an accessory before the fact of the murder of the victim. To help her husband make a deal with the prosecution, Naomi Elliott agreed to record a conversation with her nephew, Danny Branam, when she visited him at the prison. During the conversation, Elliott told Branam that her husband had been arrested and that the police were “on to something” and that someone was talking about what happened when the victim was killed. The first three versions of the defective recording did not definitely incriminate the defendant; however, according to the prosecution’s revised version of the transcript, which as discussed earlier was presented to the defense counsel late into the trial, statements made to Elliott by Branam asserted that the defendant had been present when the victim was shot. But even the revised version of the tape did not establish the identity of the actual killer, who was referred to only as “he.” The tape and the revised transcript of the tape were admitted into evidence during the State’s direct examination of Naomi Elliott.
On cross-examination of Naomi Elliott, who, apparently was also unaware that the prosecution’s revised version of the transcript included the assertion that the defendant was present at the scene,' the defendant’s counsel pointed out that the ambiguous references on the tape to “he” and “us” could be interpreted as references to Branam, Ray Elliott, and Naomi Elliott rather than to Branam, Ernest Walker, and the defendant. But, on redirect, Naomi Elliott provided the missing identification of the person who fired the fatal shots with another hearsay statement. When asked by the State how she knew to whom “us” referred to and “what happened out there that night,” she did not rely upon the tape recorded conversation with the defendant. Instead, she stated, the second inadmissible hearsay statement, that three or four days after the murder, Danny Branam, in response to Ray Elliott’s remark that he had heard nothing on the news about a woman being killed, said, ‘Yeah, T.J. [the defendant] shot her.” She testified that Branam also told them at that time, that they needed to get rid of the weapon, and that later he told her, the third inadmissible hearsay, that the defendant had approached the driver’s side of the victim’s automobile and had shot her when she reached for her weapon.
Naomi Elliott then reinforced the point by testifying, the fourth inadmissible hearsay, that in 1989, after her husband had been released from jail, Ernest Walker gave her an account of the murder in which the defendant was the person who did the shooting. According to her testimony, Ernest Walker told her that while he was sitting in Elliott’s *403automobile he heard shots and saw the defendant beside the door of the victim’s automobile. Her testimony was that, based on these accounts of the killing related to her by Danny Branam and Ernest Walker, she interpreted the otherwise uncertain references to “he” and “us” on the tape to mean the defendant, Ernest Walker, and Danny Bra-nam and the indefinite references to the killer to indicate the defendant. During rebuttal closing argument, the State relied on its version of the transcript of the tape to argue that the defendant was present at the scene of the crime, and relied on the other hearsay statements to argue that he was the one who shot the victim.
Co-conspirator Exception
I concur in the majority’s finding that the four hearsay statements were not admissible under the co-conspirator exception to the hearsay rule, but base my conclusion on a different rationale. Tennessee Rule of Evidence 803(1.2)(E) provides that the hearsay rule does not exclude a “statement offered against a party that is ... a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.” For a declaration to be admissible under this Rule, certain conditions must be met. First, there must be independent proof of the existence of the conspiracy and the connection of the defendant and the declarant to the conspiracy. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn.Crim.App.1992). On this point, I concur with the majority that whether a conspiracy had been entered into should be determined under the law existing at the time the statements were made, i.e., Tenn.Code Ann. § 39-1-601 (1982). This is particularly true because it is “the substantive law of crimes that governs the admissibility of conspirators’ declarations against other members of the conspiracy.” Neil P. Cohen et al., Tennessee Law of Evidence, § 803(1.2).6, at 404 (2d ed. 1990); see also Van Riper v. United States, 13 F.2d 961, 967 (2d Cir.1926) (co-conspirator’s declarations are admitted upon “the substantive law of crime”). Therefore, even though Tenn.Code Ann. § 39-12-103 (Supp.1989) was in effect at the time of the trial, I would determine the existence of the conspiracy under the statute in effect at the time the conspiracy occurred. Applying this law, I find, as does the majority, that the evidence in the record established the existence of a conspiracy in this case. See State v. Stamper, 863 S.W.2d 404 (Tenn.1993).
A second requirement for the admission of a co-conspirator’s declaration is that the declaration must be made “during the course of the conspiracy.” If the conspiracy either had not yet begun or had ended at the time the statement was made, the declaration is inadmissible. Owens v. State, 84 Tenn. 1 (1885); Sweat v. Rogers, 53 Tenn. 117 (1871); State v. Gaylor, 862 S.W.2d at 554. A conspiracy may continue after the crime that was its object has been completed for, among other purposes, the concealment of the crime or to prevent witnesses from testifying. State v. Crabtree, 655 S.W.2d 173, 178 (Tenn.Crim.App.1983).4
The final condition for admission of a co-conspirator’s declaration is that the statement must be made in furtherance of the conspiracy. In this regard, “the statements must somehow advance the objectives of the conspiracy, not merely inform the listener of the declarant’s activities.” State v. Hutchison, 898 S.W.2d 161, 170, n. 6 (Tenn.1994) *404(quoting United States v. Snider, 720 F.2d 985, 992 (8th Cir.1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984)). Casual or purposeless conversation or gossip about the crime does not meet this requirement, State v. Hutchison, 898 S.W.2d at 170; nor do “mere narratives of past successes and failures.” United States v. Tarantino, 846 F.2d 1384, 1412 (D.C.Cir.1988), cert. denied, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988).
Many of the statements made by Branam during his recorded conversation with Naomi Elliott at Brushy Mountain were mere narrative and gossip about the crime and obviously were not made in furtherance of the conspiracy. These included the statement implicating the defendant in the killing and those containing the ambiguous references to “us” and “we” relied upon by the State to bring further statements by Branam and Ernest Walker before the jury. Even those statements made to further conceal the crime, such as his remarks to his aunt about how to mislead law enforcement officials regarding the weapon used in the killing and how he would respond to further interrogation by the police, were inadmissible because they were made long after the offenses had been committed and the primary conspiracy to rob the victim had terminated. Although some jurisdictions, including Tennessee, hold that a conspiracy may continue for the purpose of concealment, the rule that every conspiracy to commit an offense includes an implied subsidiary conspiracy to conceal evidence of the offense has been rejected by several jurisdictions. See Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); State v. Rivenbark, 311 Md. 147, 533 A.2d 271 (1987). Many courts have stated that admitting co-conspirators’ statements made after achievement of the primary goal of the conspiracy would allow an intolerable expansion of the co-conspirator exception. As Justice Jackson commented in his concurrence in Krulewitch, it is
difficult to see any logical limit to the “implied conspiracy,” either as to duration or means.... Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversation out of court....
... If the law implies an agreement to cooperate in defeating prosecution, it must imply that [the agreement] continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.
Krulewitch v. United States, 336 U.S. at 456, 69 S.Ct. at 724, 93 L.Ed. at 800.
It is also apparent that an extension of the co-conspirator exception to include remarks made long after the primary objective of the conspiracy has been reached, raises problems under the Sixth Amendment. See Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 2783, 97 L.Ed.2d 144 (1987); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Horton v. Zant, 941 F.2d 1449 (11th Cir.1991), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). To avoid these substantial objections, a co-eon-spirator’s statements made during subsequent efforts at concealment should not be admitted unless they are made at a time proximate to the commission of the principal crime that was the object of the conspiracy. See People v. Childrous, 196 Ill.App.3d 38, 142 Ill.Dec. 511, 520-21, 552 N.E.2d 1252, 1261-1262 (1990); People v. Eddington, 129 Ill.App.3d 745, 84 Ill.Dec. 887, 905, 473 N.E.2d 103, 121 (1984); People v. Meagher, 70 Ill.App.3d 597, 26 Ill.Dec. 800, 804, 388 N.E.2d 801, 805 (1979). For example, the statements admitted in the leading Tennessee case on this issue, State v. Crabtree, 655 S.W.2d 173 (Tenn.Crim.App.1983), were made only one month after the accomplishment of the principal offense. In contrast, the statements Branam made during his aunt’s visit to Brushy Mountain occurred almost two years after the primary goal of the offense, the robbery of the victim, had been accomplished. These statements do not meet the requirement of temporal proximity and are therefore inadmissible under the co-conspirator exception to the hearsay rule.
I also find that the declarations of Danny Branam and Ernest Walker related by Nao*405mi Elliott on redirect examination were inadmissible. Those statements describing the defendant’s participation in the crime, though seriously incriminating, were only narratives of past actions of the conspirators, not declarations made in furtherance of the conspiracy. Additionally, since Ernest Walker’s statements, like Branam’s recorded conversations, were made after the arrest of Ray Elliott in 1989, they do not meet the temporal proximity requirement for eo-eonspirator’s statements made during the concealment phase of a conspiracy.
Non-hearsay Purpose
The State argues that these statements were properly admitted in response to the defendant’s cross examination of Naomi Elliott and implies that they were not admitted for their truthfulness but only to show how Naomi Elliott understood certain parts 'of Branam’s recorded statement to refer to the defendant. Even this precarious basis must fail because no limiting instruction to this effect was given to the jurors, who were thereby permitted to consider as substantive evidence the bald, uncross-examined statements of non-testifying co-defendants that the defendant fired the shots that killed the victim. Under the circumstances, the admission of Branam’s and Ernest Walker’s statements raises Sixth Amendment concerns. Cf. Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Stephenson, 878 S.W.2d 530, 548-549 (Tenn. 1994) (in both cases, limiting instructions given to prevent jurors’ misuse of hearsay statements prevented error under Sixth Amendment).
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Likewise, Article I, Section 9 of the Tennessee Constitution provides, “That in all criminal prosecutions, the accused hath the right ... to meet the witnesses face to face.” A prosecutor wishing to introduce evidence that would normally infringe on a defendant’s confrontation rights under the state or federal constitutions must show that use of the evidence is necessary, that the evidence carries its own indicia of reliability, and that the evidence is not crucial or devastating. State v. Armes, 607 S.W.2d 234 (Tenn.1980); State v. Philpott, 882 S.W.2d 394, 405-406 (Tenn.Crim.App. 1994). There was no such showing in the present case.
Waiver
Given the finding that the statements of the co-defendants were not admissible under the co-conspirator exception to the hearsay rule or otherwise, the next issue is whether the error was waived by the defendant, as contended in the concurring opinion. The concurrence states, “appellate review of the issue [of whether admission of the hearsay was error] has been waived as a result of the defendant’s tactical decision not to object at trial.” Concurring opinion at p. 399. In justifying its holding, the concurrence states,
In this ease, the defendant failed to interpose an objection to the admission of the statements even though the trial judge specifically inquired if the defense objected before admitting the evidence now challenged as error. Thus, the trial judge had no opportunity to rule on the evidence that the defendant now claims was admitted in error.
Concurring opinion, p. 399[2], However, a detailed review of the record shows that an objection was timely raised and the incriminating statements were not allowed in for tactical reasons.
Prior to the trial, the defense counsel objected to the allowance of hearsay statements on the ground that the conspiracy had terminated when the statements were made. Counsel asked for a pretrial hearing on “[w]hether otherwise hearsay statements or acts sought to be introduced into evidence by the State in this case were made in the course of and in furtherance of a conspiracy pursuant to which the State seeks to admit said statements.” In discussing the motion immediately prior to the trial, the defense counsel stated, “If the Court wants to give us a pre-trial hearing on whether or not a conspiracy existed, we would like to have it.... We think that is a better way to do it than to introduce a statement and then find out later *406that the Court does not believe a conspiracy existed.” The trial court denied the motion, choosing instead to rule as the statements were introduced.
On the fourth day of trial, immediately prior to Naomi Elliott’s critical testimony, the State provided the defense counsel with the new version of the transcript of the tape. Unknown to the defendant’s attorney, a crucial phrase stating that the defendant “was there” had been added to the statement. The concurring opinion is apparently based on a finding that the defense was aware of this addition to the transcript, because it concludes that any objection to the out of court statements were waived “as a result of the defendant’s tactical decision not to object at trial.” Because a tactical decision implies knowledge of what is being introduced, a review of the record is necessary to determine not only whether an objection was made, but also whether the defense counsel was aware that the transcript included the statement that the defendant “was there.”
The record shows that, initially, the Tennessee Bureau of Investigations (T.B.I.) transcribed the tape recording, and a copy of the transcript was given to the defendant. In the T.B.I. transcript, the statement at issue appeared as follows: “I don’t think Jay and Joe would say nothing to me ‘cause — (Inaudible) I think it is somebody on down the side. (Inaudible)”. This is the transcript that the defense used to prepare its case. At the pretrial healing, defense counsel was allowed to get a copy of the tape recording. He listened to the tape six times and his co-counsel listened to it six times and neither of them understood Branam to say that the defendant “was there.” The defense then requested permission to get a court reporter to prepare a transcript. The court reporter transcribed the statement as “I don’t think— to tell you the truth, I don’t think Jay and Joe would say nothing. (Inaudible) They both know — (Inaudible)—burn their God damn ass.” The defense had copies made of this transcript and delivered one to the State.
Subsequently, the prosecuting attorneys, using T.B.I. equipment, listened to the tape and prepared a transcript. The transcript they developed states, “I don’t think — to tell you the truth, I don’t think Jay and Joe would say nothing. (Inaudible) They both know that’s gonna burn their God Damn ass.”
A description of what happened next is best described by defense counsel while arguing the motion for a new trial:
All right. So we start the trial on Monday. Thursday morning I’m handed a copy of a transcript that the State wishes to introduce. Well, this is Thursday morning now. We’re fifteen minutes away from starting trial. So what I do is I take the State’s transcript and take our transcript and [my co-counsel] and I run back here into the closet, and I start telling [him], “Look. Here’s the points I want to make with Naomi. Let’s compare transcripts to make sure we don’t have a problem with it, to make sure I’m accurate in that part.” Well, I don’t go to that part. I have no reason to go to that part. I don’t know that there’s an admission that my guy was in there.
However, the transcript presented to the defense on the morning of the fourth day of trial, on the same day it was to be introduced through Naomi Elliott, states: “I don’t think — to tell you the truth, I don’t think Jay and Joe would say nothing ‘cause they were there’ and they both know that’s going to burn their God damn ass.” (Emphasis added.) The prosecutors had added the language “ ‘cause they were there and’ in the place where the three previous transcripts had read (inaudible).”
The defense counsel requested that its version of the transcript also be submitted to the jury so that the jury could listen to the tape and decide which transcript was more accurate. The State objected to the defendant’s transcript stating, “transcripts are admissible only through a witness who was present during the recording or a person who monitored the recording.” The defense argued that it did not think that the State’s version was accurate, and stated,
In order for it to come in, to begin with, you have got to find that this is a continuation of the conspiracy. You have got to find that he is a co-conspirator of mine; *407that the conspiracy is still existing, still an on-going conspiracy. Kind of interesting, this is two years after it is over. The purpose, the object of the conspiracy is over — the robbery, murder, if that is what it is.
The trial court clearly accepted this argument as an objection to the admission of the tape, but overruled the objection, stating, “I am taking it, of course, there are statements in there, in an effort to conceal detection of the crime. I am accepting that as a given, now, General. In that view, the Court is of the opinion that the tape is admissible. I do not have a great problem with that.” Clearly, the trial court considered the objection that the statements in the tape and transcript were inadmissible hearsay, and ruled that they were admissible under the co-conspirator exception because they were made in an effort to conceal detection of the crime.
When the tape and transcript were actually introduced by the State through the testimony of Naomi Elliott, the court asked whether there was an objection. The defendant’s attorney, obviously realizing any further objection would be futile, replied, “No objection.” A review of what followed establishes that even then the defense was not aware of the incriminating addition to the transcript.
On direct examination, after establishing how Naomi Elliott was wired for the recording and drove to Brushy Mountain, the State played the tape for the jury to hear, and the jury each was given a copy of the State’s transcript to read. No questions were asked in reference to the incriminating portion of the statement. The record shows that during the cross-examination of Naomi Elliott, the defense counsel obviously was working from a transcript different from that supplied by the State.
Q: Thank you. It is my page seven and eight. They have got their’s numbered differently. Let me find it on their transcript. ...
The cross-examination consisted of the defendant’s attorney going through his transcript, focusing on those statements that might suggest that it was Ray Elliott who was at the scene of the crime and who was an active participant, and those that indicated that Naomi Elliott would say anything to get her husband out of trouble.
On redirect examination, the State quoted a portion of the statement at issue, but oddly enough, omitted any reference to the additional language, “cause they were there,” which, unlike the remainder of the statement, is truly incriminating. In referring to Danny Branam’s statement on the tape, the prosecuting attorney quoted the court reporter’s version:
Q: The reason why he asked you that is because he told you, “They know that, if they talk, that it would bum their goddamn ass.”
A: Yes.
On recross examination, the defense focused on the fact that the tape did not establish the identity of the person who shot the victim.
Q: He didn’t know you were wired. By the way, he never said T.J. shot her, did he?
A: Who?
Q: He never said T.J. dropped her, did he?
A: On this?
Q: Yes, ma’am.
A: No, I don’t believe.
Q: So the only way we know that he said T.J. did it is because you said that, right?
A: Right. He said it other times.
Q: He said it other times. But the fifty-two pages of taped discussions about this incident with him, when he tells you the details, he never says T.J. did it, did he?
A: No.
The first time that the statement “ ‘cause they were there” was mentioned by the prosecutor, was in the State’s rebuttal closing argument; there, the State referred to the phrase on five different occasions. The transcript of the closing arguments shows clearly that defense counsel was totally surprised by the addition to that statement:
State: Danny Branam is down on tape. Danny Branam says, ... When she got the safety off, he bagged her, running around *408the ear.” She had her seatbelt on, was still trying to turn around and shoot him.
“I don’t think — to tell you the truth, I don’t think Jay and Joe would say nothing, because they were there, and they both know that is going to bum their goddamn ass.”
Ladies and gentlemen—
Defense Counsel: Your Honor, I object to that comment. I want the objection to be noted on the record. I would like a jury-out hearing where I could explain my — I am sorry — when the jury goes out—
State: Your Honor, we object to—
Defense Counsel: —I would like to explain it further.
State: — ... making an objection like this in front—
The Court: This is argument, ladies and gentlemen. Proceed.
(Emphasis added). And later, when given an opportunity to discuss his objection, the defense counsel states,
Well, actually, I misunderstood what he said. I thought he said — I will tell you honestly — and was giving his opinion that my client would not say that, because it would burn his ass. That was the objection. Then I got to looking at the transcript. I think he was reading from the transcript.
The quote relied upon by the concurrence— “I made a tactical decision to let that tape in” — when placed in context, does not support waiver. In context, the defense counsel was stating that had he been aware of the addition of the phrase “they were there,” he again would have moved to suppress it.
At the sentencing hearing, the defense counsel, having reviewed the transcript and determined that the incriminating statement had been added, moved that the court declare a mistrial. This record, in my view, establishes beyond any doubt that the defendant did not tactically waive the right to object to the admission of the tape.
If the concurrence is referring to the other three hearsay statements which were introduced during the redirect examination of Naomi Elliott when it finds a tactical decision not to object, my response is similar; those statements also were included in the initial motion for a pretrial hearing to determine whether the hearsay statements were made in the course of a conspiracy. In my opinion, the record will not support the conclusion that the defendant did not object and the admission of the hearsay statements was a “well thought out” tactical decision.
The exchange between the trial judge and the defense counsel when the transcript and tape were actually introduced by the State does not show waiver. The trial judge inquired if there was an objection, to which defense responded in the negative. Case law holds that “this Court is not inclined to require counsel to make technical, argumentative or repetitious objections to issues which have already been ruled upon.” State v. McGhee, 746 S.W.2d 460, 464 (Tenn.1988). In McGhee, the issue of whether a prior conviction was admissible was discussed at a “jury-out hearing,” the trial judge held the conviction admissible and made a clear and definitive ruling. The accused then took the stand, and his counsel brought out the conviction on direct examination. On appeal, the Court held,
After the ruling had been made, clearly and unequivocally, in our opinion the issue was sufficiently preserved for further review on appeal without the making of any further objection.
Id. at 463. And in the ease of Goines v. State, 572 S.W.2d 644, 649 (Tenn.1978), the Court stated,
The test must be whether the issue was fairly raised, or phrasing it another way, whether the trial judge was fairly apprised of petitioner’s objection or given a reasonable opportunity to consider the matter.
It would be manifestly unjust to apply the waiver rule in this case where the petitioner, in advance of trial, fairly apprised the Court of the substance of his objection to the testimony and where on motion for a new trial the Court was again apprised of the petitioner’s contentions.
Likewise, it is manifestly unjust to apply the waiver rule to the admission of the transcript of the tape in this case.
*409The only Tennessee ease relied upon in the concurring opinion is State v. Ogle, 666 S.W.2d 58 (Tenn.1984), in which this Court found reversible error and remanded the case for a new trial. In Ogle, the State, without objection by the defendant, introduced the statement of a non-testifying co-defendant which incriminated the defendant. The Court set forth the circumstances under which the error could be considered on appeal:
Although, as a general rule, the appellate courts of this State do not consider issues that are not raised in the trial court, State v. Pritchett, Tenn., 621 S.W.2d 127, 135 (1981), plain error is a proper consideration for an appellate court whether properly assigned or not. State v. Mackey, Tenn., 553 S.W.2d 337, 340 (1977), Davidson v. State, 223 Tenn. 193,443 S.W.2d 457 (1969). Rule 52(b), Tennessee Rules of Criminal Procedure, states that an error affecting “the substantial rights of the accused” may be noticed at any time “where necessary to do substantial justice.” Since a Bruton violation raises a “substantial threat” to the right to confront the witnesses against him, Bruton [v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ], such a violation clearly affects a “substantial right” and constitutes plain error which “went to the basis of fair hearing and trial....” Roberts v. Russell [392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968)].
State v. Ogle, 666 S.W.2d at 60. The Court’s response to the State’s insistence in the Ogle case, the defendant’s counsel did not object to admission of the evidence for tactical reasons, was the following quote from the Court of Criminal Appeals:
In the instant case, co-defendant Miller’s confession clearly inculpated defendant Ogle, and it was obviously crucial to the case against Ogle. I cannot imagine any legitimate tactical reason for defense counsel’s failure to object when an objection would have effectively destroyed the state’s case.
Id. at 61 (quoting from Judge Martha Craig Daughtrey’s dissent in Opinion of Court of Criminal Appeals). That language is eminently applicable to the case before the Court.
Because the defendant’s theory of the case, which was developed through the witnesses and in closing argument, was that it was Ray Elliott who was at the scene of the crime and not the defendant, and because the prosecution brought in a revised transcript which absolutely squelched the defendant’s case on the fourth day of trial, and because the defense was not aware of this prior to the rebuttal closing argument, it is not appropriate to find that the defense “waived” its objection to the tape and transcript.
Plain Error — Ineffective Assistance of Counsel
Even had counsel knowingly failed to object, the addition to the transcript that the defendant “was there,” would make its admissibility plain error. As stated in State v. Ogle, the evidence “was obviously crucial to the case against [the defendant]. I cannot imagine any legitimate tactical reason for defense counsel’s failure to object when an objection would have effectively destroyed the state’s ease.” State v. Ogle, 666 S.W.2d at 61.
The same conclusion must be reached concerning the other three statements. As stated, the ultimate issue in this case was the identity of the person who fired the fatal shots. The only hearsay testimony by Naomi Elliott which could have helped the defendant was a statement by Branam or Earnest Walker that she or her husband killed the victim. Expecting such testimony would be absurd. Allowing the admission of such testimony without objection would constitute the ineffective assistance of counsel.
The United States Supreme Court has defined two requirements for a finding that a defendant did not receive the effective assistance of counsel: (1) that counsel’s performance was deficient to the degree that counsel was not functioning as the Sixth Amendment envisioned; and (2) that the deficient performance prejudiced the defense effort. Strickland v. Washington, 466 U.S. [668] at 687, 104 S.Ct. [2052] at 2064 [80 L.Ed.2d 674 (1984)]. The second “requires showing that coun*410sel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 687, 104 S.Ct. at 2064. To prove deprivation of a fair trial, a defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. If counsel’s performance was in some way deficient, but a defendant cannot prove the deficiency prejudiced his defense, then any deficiency is deemed “harmless error,” and counsel will not be held to be ineffective. 466 U.S. at 692, 104 S.Ct. at 2067.
Hartman v. State, 896 S.W.2d 94, 104 (Tenn. 1995). If defendant’s counsel had not objected to the recording of a known perpetrator of the crime stating that the defendant was at the scene of the crime, and had allowed out-of-court statements that the defendant was the trigger man, this representation under Strickland would constitute the ineffective assistance of counsel and require reversal of the conviction.
This was not a situation in which counsel took a calculated risk which would foreclose subsequent review under the plain error rule. Failure to object for tactical purposes assumes some reasonable expectation of possible benefit. Where there is no reasonable expectation of possible benefit, the admission of highly prejudicial evidence relevant to the essential issue in the ease — the identity of the person who fired the fatal shots — was plain error affecting the substantial rights of the defendant and may be noticed on appeal. Under Rule 52 of the Rules of Criminal Procedure,
An error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial justice.
See also Tenn.R.App.P. 13(b).5 Furthermore, “[i]n death penalty cases ... this Court is required by statute to review the sentence and to consider significant errors whether or not called to the attention of the trial court.” State v. Martin, 702 S.W.2d 560, 564 (Tenn.1985). Indeed, this Court has consistently held that the rule that a defendant’s failure to timely object to the introduction of evidence constitutes a waiver of appellate review, does not apply to substantial constitutional errors in cases “involving the deprivation of life and liberty.” Veach v. State, 491 S.W.2d 81, 83 (Tenn.1973); see also State v. Goins, 705 S.W.2d 648, 650 (Tenn.1986).
In summary, the record compels the conclusion that the defendant did not waive the admission of the hearsay evidence, and even if he had waived it, admission of this testimony was plain error under Rule 52, Tenn. R.Crim.Proc., and requires review by this Court.
Prejudicial or Harmless Error
The next question then is whether admission of the co-defendants’ statements was harmless error beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
The majority holds that admission of the co-defendants’ statements was harmless because other witnesses testified to incriminating statements made to them by the defendant. I would point out that the credibility of all of the other witnesses who testified that the defendant had admitted killing the victim was strongly challenged. See Hartman v. State, 896 S.W.2d 94,104 (Tenn.1995). Of these witnesses, Ray Elliott was a suspect in the murder. A description of the driver of the Cadillac at the livestock market on the night of the killing matched his appearance. His weapon and his automobile were used in the killing. Naomi Elliott, obviously, was determined to help her husband avoid prosecution. Likewise, the credibility of the three other persons who testified that the defendant had confessed his participation in the *411homicide was at issue. Terry Bowling was a convicted felon and an associate of Ray Elliott. Jackie Dawson is Danny Branam’s brother, his mental capacity was questionable and his direct testimony consisted almost entirely of leading questions by the State. Peter Taiarico was an inmate at the state penitentiary and an admitted “snitch.”
Critical to the credibility of all these witnesses was the March 1989 statement of Danny Branam, in the words of the prosecutor, “the man who was there” the night the victim was shot. And critical to an understanding of Branam’s testimony were the statements of Branam and Ernest Walker to Naomi Walker. The record confirms the evaluation of the tape recording given by the trial judge himself: it was “the heart and [soul] of the State’s case.” Without its admission, none of the other statements by the co-defendants could have been admitted, and the credibility of the other witnesses testifying that the defendant had admitted that he was the triggerman would have been significantly weakened. The tape presented to the jury the actual words of the only person who admitted being present when the robbery and murder were committed. This aspect of the taped statements was emphasized by the State during closing argument.
In Chapman v. California the Supreme Court held that
constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless_ [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. at 24, 87 S.Ct. at 828. In Chapman, the Court found it “completely impossible ... to say that the State has demonstrated, beyond a reasonable doubt, that the [error] did not contribute to petitioners’ convictions,” and consequently, remanded the case for a new trial. Id. at 26, 87 S.Ct. at 829.
The United States Supreme Court recently imposed a further limitation on excusing constitutional error as harmless. In O’Neal v. McAninch, — U.S. —, —, 115 S.Ct. 992, 994,130 L.Ed.2d 947 (1995). The Court stated:
When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had “substantial and injurious effect or influence in determining the jury’s verdict,” that error is not harmless. And, the petitioner must win.
Id. at —, 115 S.Ct. at 994. This issue was addressed in the dissent in State v. Nichols, 877 S.W.2d 722, 742 (Tenn.1994) (Reid, C.J., dissenting):
Errors not rising to the level of a constitutional rights deprivation are judged for harm or prejudice under Rule 52(a) of the Tennessee Rules of Criminal Procedure and Rule 36(b) of the Tennessee Rules of Appellate Procedure. In several important ways, the test for harmlessness of constitutional errors differs from that for nonconstitutional errors. First, once a constitutional error is found, the burden shifts to the state to prove that it is harmless; the burden does not shift to the state for the nonconstitutional errors. Second, the reviewing court must be persuaded “beyond a reasonable doubt” that the error did not affect the trial outcome in order to deem the error harmless — a stricter standard of persuasion than for nonconstitu-tional error. Finally, a most significant difference is that some constitutional errors never can be deemed harmless, whereas any nonconstitutional error may be considered harmless in a particular ease. [James C. Scoville, Comment, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 U.Chi.L.Rev. 740, 741-2 (1987).]
In Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), the Supreme Court concluded that an appellate court cannot fulfill its obligations of meaningful review by simply reciting the formula for harmless error. Justice O’Connor, concurring, observed that:
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we held that before a federal constitutional error can be held harmless, the review-*412mg court must find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id., at 24, 87 S.Ct. at 828. This is a justifiably high standard, and while it can be met without uttering the magic words “harmless error,” see ante [504 U.S. at 539-540, 112 S.Ct.] at 2122-2123, the reverse is not true. An appellate court’s bald assertion that an error of constitutional dimensions was “harmless” cannot substitute for a principled explanation of how the court reached that conclusion.
Id., 504 U.S. at 541, 112 S.Ct. at 2123 (O’Connor, J., concurring).
On this record, the finding that admission of the statements was harmless when tested against these standards is, in Justice O’Con-nor’s words, only a “bald assertion.”
Conclusion
I agree with the majority that the hearsay evidence was not admissible^ I would find that the evidence was admitted over the defendant’s objections and, further, its admission was plain error. I would hold that the State has not carried the burden of showing the erroneous admissions of evidence were harmless beyond a reasonable doubt and would, therefore, remand the case for a new trial.
. State V. Branam, 855 S.W.2d 563 (Tenn.1993) (conviction affirmed; sentence reversed).
. State v. Ernest Jay Walker, No. 03C01-9110-CR-00346, 1993 WL 44195 (Tenn.Crim.App., Knoxville, February 22, 1993) (interlocutory appeal remanding case to trial court) (Ernest Walker eventually pled guilty).
. The majority opinion rejects the defendant's assignment of error that revising the transcript of the tape was prosecutorial misconduct, apparently on the ground that it Was, at most, harmless error.
. I find unsupported the statement of the majority that State v. Crabtree "has been totally abrogated by the current statute, Tenn.Code Ann. § 39-12-103, defining criminal conspiracy." To the contrary, § 39-12-103(e)(l) adopts the approach in Crabtree:
Conspiracy is a continuing course of conduct which terminates when the objectives of the conspiracy are completed or the agreement that they be completed is abandoned by the person and by those with whom the person conspired. The objectives of the conspiracy include, but are not limited to, escape from the crime, distribution of the proceeds of the crime, and measures, other than silence, for concealing the crime or obstructing justice in relation to it. (Emphasis supplied.)
The Crabtree holding is not abrogated by subsection (g) of the same statute, which states only that “[n]othing in this provision is intended to modify the evidentiary rules allowing statements of co-conspirators in furtherance of a conspiracy." (Emphasis supplied.) This provision speaks only to the second prong of the evidentia-ry rule and not to the first, i.e., whether a conspiracy is ongoing at the time the declarations are made.
. "The appellate court .may in its discretion consider other issues in order, among other reasons: (1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.”