concurring and dissenting.
I concur in the majority’s decision that the use of the invalid aggravating circumstance, the murder was committed while the petitioner was engaged in committing the felony of kidnapping, was prejudicial error requir*107ing that the sentence be vacated and the case remanded for resentencing.
I dissent from the majority’s decision affirming the conviction. In my opinion, the record shows that the petitioner’s constitutional right to counsel, as held by the United States Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and his constitutional right to due process, as found in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated during the guilt-innocence phase of the trial and that the violations were not harmless.
Both constitutional issues are raised by the State’s procurement and use of the testimony of Raven “Snake” Frazier, a penitentiary inmate, whose testimony was arranged in part by Kenny King, a contract killer serving two life sentences. All of the evidence other than the testimony of Frazier was circumstantial; it placed the petitioner in the same general area where the victim disappeared and where she was murdered. The evidence that convicted the petitioner and supplied the only evidence in support of the heinous, atrocious, or cruel aggravator was the testimony of Frazier. That testimony was stated by this Court on direct appeal as follows:
Raven “Snake” Frazier testified that he became acquainted with defendant at the state penitentiary and related a number of incriminating statements that defendant made to him. According to Frazier, defendant told him that he “put the lights” on the girl, told her that there was a sickness in her family, to lock her car and come with him; that he got “it” in the back seat and that it was so good that he took her out of the ear, killed her and did it again; that she was not the angel that her boyfriend thought she was; that she “had had it one or more, two or three times.”
State v. Hartman, 703 S.W.2d 106, 112 (Tenn.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986). The Court noted the matter of Frazier’s credibility:
Defendant presented witnesses who testified that Frazier would do anything to secure early release from the penitentiary and that he was an habitual liar. A former District Attorney General testified about other attempts by Frazier to supply information in exchange for favorable treatment.
Id. at 112-13. The Court then summarized the corroborating evidence:
The evidence in this case unerringly places defendant in the location from which Kathy disappeared, at the time she disappeared, with a demonstrated disposition for stopping motorists with the “blue lights” of the patrol car and a clear implication that, in the current vernacular, he was “looking for some action.” From the testimony of Carol Estes and Jackie Jackson the jury could have found that defendant stopped Kathy across the street from the church where her car was found. His statements of his actions between 6:00 p.m. and 3:30 a.m., on November 16-17, 1981, leave ample time for the kidnapping and murder of the victim. His excuses of being lost and deliberately driving into the creek to account to the sheriff for his extended absence simply do not fill the hours between 9:30 p.m. and 3:30 a.m. and stand in this record without corroboration that has probative value.
Id. at 113.
On this appeal, the majority characterizes Frazier’s testimony as the “linchpin” of the evidence connecting the petitioner with the crime. A more descriptive term could not be used. “Linchpin” is defined as something that serves to hold diverse elements together. It was Frazier’s account of the petitioner’s incriminating statements that transformed the State’s case from surmise and conjecture to evidence of guilt.
Prior to any discussion between the prosecutors and the inmates regarding this case, Frazier had requested District Attorney General Hestle’s help in obtaining release from prison. According to Hestle’s testimony,
Basically, he said he had information that he wanted to provide if our office could help as far as his sentencing went, and the information — he had no information that we were interested in at that time.
*108Frazier first offered, in exchange for Hestle’s assistance, information about a drug dealer, which Hestle said was not useful. Later, Frazier offered information regarding a car theft operation, which Hestle also declined because “it was too old” and “couldn’t help us at that point.”
The crime was committed on November 16, 1981, the petitioner was arrested on September 21, 1982, and the trial was held on May 9, 1983. As the trial date approached, the State had no direct evidence connecting the petitioner to the crime. At that time, a third contact was made with the State’s attorneys.
Because the testimony of the participants is less than precise, the chronology of significant events cannot with complete accuracy be determined from the record. The origin and development of the relationship between the prosecutors, with essentially an unsolved murder on their hands,1 and the inmates, with testimony for sale or barter, has been described variously.
Judge Allen Cornelius, who wrote the lead opinion for the Court of Criminal Appeals, described it thusly,
From the transcript of the evidentiary hearing, it is dear that these state officers entered into an agreement to pay inmate Ring to secretly tape an incriminating statement by Hartman and to furnish a witness to testify at the trial.
It is amazing that after the tape did not materialize, due to an alleged malfunction of the recorder, these state officers accepted the uncorroborated testimony of Raven Frazier. In our opinion this effort by the state officers was a clear violation of the 1964 case of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, L.Ed.2d 246 (1964). The defendant had been indicted and had a lawyer, the state officers did not abide by the law while enforcing the law. Spano v. People of New York, 360 U.S. 315, 320, 79 S.Ct. 1202,1205, 3 L.Ed.2d 1265 (U.S.N.Y. 1959). Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime. Massiah, supra[, 377 U.S. at p. 205, 84 S.Ct. at] p. 1202.
This court rejects the State’s argument that the statements made by the defendant, which formed the basis of Frazier’s trial testimony, were uttered by the defendant prior to the time the prosecution accepted the offer of assistance. Apparently the state’s brief writer misread the full transcript of Frazier’s trial testimony and that of Generals McCutchen, Bobo, and Hestle at the evidentiary hearing. Mr. Hestle’s testimony at the evidentiary hearing referred to a collect call he received in February 1983 from Frazier. After some uncertain[ty] Mr. Hestle settled on Frazier’s words “I may be able to get some” meaning information. See Vol. IV, page 388, Record Petition of Post Conviction Relief. The State cites no authority in support of its argument. In fact, Massiah, Henry, Moulton and State v. Berry, 592 S.W.2d 553 (Tenn.1980) stand for a very strong policy that prosecutors and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.
Hartman v. State, No. 01-C-01-9008-CC-00194, slip op. at pp. 9-11, 1992 WL 146756 (Tenn.Crim.App. June 30, 1992).
Judge John Byers agreed with Judge Cornelius that the sentence be vacated, but on a different ground, that the petitioner was denied effective assistance of counsel at the sentencing hearing. Judge Byers also reached a different conclusion with regard to the sequence of events. He described the development of the relationship as follows:
It seems to me that King, a hired killer, realized he was in possession of a saleable product. King, who can best be described as an “old rat in the barn,” knew the recorded voice of Hartman making incrimi*109nating statements would be more valuable than the testimony of Snake Frazier, a convict whose credibility was not top of the line.
King then made his pitch to another former district attorney general to record Hartman making the incriminating statements.
I am satisfied King’s proposal was to have Hartman repeat what he had already said prior to the entry into this scheme by any of the incumbent or previous district attorneys general who eventually became involved.
Although the conduct of these officials created a most unsatisfactory climate in this case, I do not find the one thousand dollars was paid to buy any testimony or to otherwise deny Hartman the right to counsel. It seems from this record the initial incriminating statements made to Frazier by Hartman were free of any taint and were properly admitted. I would, therefore, find, and do find, not that there was harmless error beyond a reasonable doubt in the introduction of this evidence, but that it was not error at all.
Id., slip op. at pp. 1-2 (J. Byers, concurring).
Judge Robert Dwyer, dissenting, found no uncertainty with regard to the critical events, and supported his view that the sentence should be affirmed with a vivid description of the crime and a detailed criticism of the mitigating evidence, rejecting Judge Byers’ finding of insufficient assistance of counsel at the sentencing hearing.
I am in complete agreement with Judge Byers when he finds that Raven Frazier’s testimony was not tainted by the acts of the State officials. A review of this record reveals that Frazier had relayed his information to Mr. Hestle, the former Attorney General, before King, Fisher, McCutchen and Bobo started negotiations to tape Hartman’s statements. The acts of the State officials, however questionable, did not produce any evidence that deprived the appellant of any constitutional right because no evidence was offered due to the malfunction of the tape-recorder. Therefore, I see no reason to reduce the sentence.
I agree with Judge Cornelius’s finding a lack of merit in the appellant’s allegation that his trial counsel was ineffective. Like Judge Cornelius, I find it inconceivable that an attorney of Mr. Quillen’s experience would perform ineffectively under any circumstances. My review of the record leads me to conclude that the ineffective counsel issue is also meritless.
Id., slip op. at p. 1 (J. Dwyer, dissenting).
The summary of the testimony made by the trial judge, the Honorable William H. Inman, sitting by designation, was as follows:
Hartman was returned to the main penitentiary sometime after his surrender of the patrol car. One of his cellmates was Raven Frazier, who testified that Hartman admitted the kidnapping, rape, and murder of Kathy Nishiyama. Another cellmate was Kenny King, described as a contract killer, who was serving two consecutive life sentences. He called the District Attorney’s office and related that he had information about the Nishiyama murder, but would talk only to a District Attorney, Richard Fisher, whom he apparently trusted. Fisher went to the main prison and talked with King who told him that “Hartman would come to his cell and boast about the killing.” King offered, for a thousand dollars of the reward money, to arrange a recorded interview with Hartman, in the presence of Frazier. All of this was reported by Fisher to the TBI, the FBI, and to the District Attorney of Montgomery County. The TBI agreed to pay the money; the interview was arranged, the hoped for words were spoken by Hartman, but the recorder malfunctioned. [Thus] it was that there was no taped corroboration of Frazier’s testimony.
King refused to testify at the trial. His refusal, according to clear testimony, was adamant and absolute, because if he testified he became a “snitch” and his life would be in grave jeopardy, if not forfeited.
Despite the variations of facts supporting the various conclusions reached in these opinions, there seems to be a general consensus that in late winter or early spring of *1101988, Frazier and his friend and fellow inmate, Kenny King, contacted two attorneys about the possibility of providing information in the case involving the death of Kathy Nishiyama. According to the trial judge’s memorandum, the first contact with a state official regarding this ease was Kenny King’s call to Richard Fisher, an assistant district attorney in Nashville. King intimated that he might have information about the Nishiya-ma case. Subsequently, at King’s request, Fisher met with King at the prison. But, prior to Fisher’s visit to King at the prison, Frazier called Jack Hestle, the former District Attorney General for Montgomery County during whose tenure Nishiyama had disappeared, and vaguely and generally indicated that he might be able to get some information concerning a case in Montgomery County. Hestle testified that Frazier called him in February and said that “he had information, would I come to see him.” Hes-tle further testified that when he met with Frazier at the prison, “he told me what ease it pertained to and where he had gotten [the information] and that was all. He never said the details [on that visit].” Shortly after the revelation that King and Frazier were potential sources of information in the Nishiyama murder, Hestle met with his successor as district attorney general, Pat McCutchen, and McCutchen’s assistant, Wade Bobo, to inform them of this development. As a result of the identification of King and Frazier as possible informants, additional meetings occurred between the two inmates and the attorneys representing the State. The dates on which these meetings occurred are uncertain on this record, but at least three contacts between the prosecution and the inmates were revealed at the post-conviction hearing.
At the first meeting, which was between Fisher and King, it was made clear that neither King nor Frazier would talk to the prosecutors unless a one thousand dollar “informant fee” was paid to King. After assurances were made that the one thousand dollars would be paid, King and Frazier separately spoke with Hestle and Bobo at a second meeting. It was at this second meeting that it was agreed that King, who refused to testify, would tape record the petitioner making incriminating statements with a third person present, obviously Frazier, who would then testify at trial and authenticate the tape. At a later meeting between the prosecutors and the inmates, Bobo was advised that the tape recorder had malfunctioned. At that point, according to Bobo, “all” the State had was “the person who was there when this was said” — Raven “Snake” Frazier.
The petitioner’s attorney was notified that Frazier would be a witness. Frazier testified at trial, and eventually one thousand dollars was paid to King “for his performance” from personal funds of the State’s attorneys, who later were reimbursed by the TBI. Hestle also performed on his agreement to assist Frazier in his efforts for early release from the penitentiary.
The majority of this Court acknowledges that any statements made by the petitioner or King or Frazier after they had been recruited by the State were inadmissible as the product of a violation of the petitioner’s right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); State v. Berry, 592 S.W.2d 553 (Tenn.1980), cert. denied, 449 U.S. 887,101 S.Ct. 241, 66 L.Ed.2d 112 (1980). The majority, however, concludes that any violation of the petitioner’s constitutional rights was harmless because Frazier’s testimony was based upon statements made by the petitioner to Frazier prior to the State’s efforts to have King and Frazier elicit incriminating statements from the petitioner. My reading of the proof of the post-conviction hearing and the record of the original trial, which was made a part of the record in the post-conviction proceeding, does not support that finding.
Prosecutors are practical lawyers. Why should these prosecutors, who certainly knew Sixth Amendment law, jeopardize evidence in hand essential to the conviction in a highly publicized murder case by requesting that Frazier obtain further information which clearly would be inadmissible under established law? The only practical explanation is *111that the incriminating statements had not been made at the time the inmates became State agents. In my view, the testimony of the participants in this nefarious alliance supports this conclusion.
At the original trial, Frazier related the history of his contacts with the petitioner. He admitted that he first met Hartman one or two months before the trial began in 1983. This places Frazier’s first contact with the petitioner, at the earliest, in late February or early March, 1983, which is when he and King first approached the State with the possibility that they might have evidence concerning the Nishiyama murder. I am convinced that the truth is found in Assistant District Attorney General Hestle’s testimony at the trial, that, when Frazier contacted him in February of 1993, Frazier had said that he “may be able to get” information about the Nishiyama case and not that he “had” information. Hestle further stated he had told Frazier at that time, that providing information about the case “might help him” with his attempts to obtain parole.
Frazier testified that he went to the cell occupied by King and the petitioner at least daily, if not more frequently, for 10 to 15 days before the petitioner made any comment concerning the case. The first opening came when the petitioner made an innocuous remark that a deputy sheriff would testify for him at trial. Frazier related that he and King would “needle” the petitioner about the case and that, “a couple of more days” after his first remark, the petitioner expressed some concern that he could be linked to the case because he had been driving the patrol car near the area where Kathy Nishiyama’s body was found. Finally, a day or so later, the petitioner made an incriminating statement when he replied to Frazier’s remark that Nishiyama “seemed like a pretty good old girl” with the comment that “she wasn’t the angel” her boyfriend thought she was. According to Frazier, it was only “about the last time” that Frazier had talked with the petitioner that, in response to Frazier’s questioning, the petitioner related the details of how he tricked the victim into getting into the patrol car and how he had raped and killed her. Frazier testified that he then called Hestle to relate what he had heard. It is apparent from Frazier’s own testimony and that of the witnesses at the post-conviction hearing that the petitioner’s statements were made several weeks after February, 1983, which was, according to Hestle, when Frazier had first contacted him.
At the post-conviction hearing the four attorneys involved in having Frazier and King gather information from the petitioner testified. Although they stated that there was no difference between Frazier’s testimony and what Frazier had told them before trial, they were unable to tell when they had first heard the facts to which he testified at trial. At the post-conviction hearing, Bobo admitted that he was unable to distinguish between the portions of Frazier’s testimony that had been revealed at the second meeting and the parts that had come out later. He did not deny that the “specifics” of Frazier’s testimony were developed at a late point in the case. Bobo also testified that the second prison meeting produced about three statements from Frazier showing the petitioner’s involvement in the killing, but Bobo could not clarify what the statements were. All of the attorneys to whom Frazier spoke indicated that, during their earliest conversations with him, Frazier had been very vague about what he knew about the case and that it was King who had the more comprehensive knowledge of any statements.
Based upon this testimony, it is my opinion that the proof in this record does not support a finding that Frazier’s testimony was derived from statements made by the petitioner before the inmates became State agents. At most, the proof shows only that the petitioner had made some statements to King and/or Frazier before they had agreed to work for the State. It does not establish that Frazier’s testimony was solely or separately based upon those statements.
In determining whether the admission of a confession or statement obtained in violation of the right to counsel in contradiction of Massiah is harmless, it must be shown that the error was harmless beyond a reasonable doubt. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, *112828, 17 L.Ed.2d 705 (1967). The question for this Court to determine is whether the verdict actually rendered was “surely unattributable” to the error. Sullivan v. Louisiana, 508 U.S. -, -, 118 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993). The State bears the burden of proving that an error passes muster under this standard. Chapman, 386 U.S. at 23, 87 S.Ct. at 828. Based upon almost any reasonable version of the relationship between the State’s attorneys and the inmates, the State has failed to carry this burden.
The majority has also rejected the petitioner’s argument that his due process right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) was violated. The majority acknowledges that the State has a duty to disclose, upon request, evidence that may be used to impeach a witness. Gig-lio, 405 U.S. at 155, 92 S.Ct. at 766. Information concerning any agreement or understanding reached between witnesses and the State must be disclosed under this rule, id., even evidence of agreements that are not on a quid pro quo basis. See Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir.1986). Monetary compensation or a reward given for the witness’s assistance in a ease falls under this rule of disclosure. Id. at 1301.
The petitioner contends that his right to due process was violated by the State’s failure to inform his counsel that the State had paid $1,000 for Frazier’s testimony. Both the trial court and the majority of this Court have found that the payment of the $1,000 to King was immaterial to Frazier’s credibility as a witness. Both rely upon the fact that the money was paid entirely to King’s account. From this they conclude that the payment had no relation to Frazier’s testimony and therefore does not meet the requirement of materiality set forth in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).
This conclusion on the part of the majority ignores clear and undisputed evidence in the record that the $1000.00 payment to King was the prerequisite for Frazier’s informing the State of the petitioner’s statements. At the post-conviction hearing, Assistant District Attorney Wade Bobo testified that before either King or Frazier would talk with the State “they would get ... an informant’s fee or something of $1,000 before we would be able to talk to them about it. Before they would converse with us about their conversation.” He repeated, “I just know ... either at that time [of the first meeting with Hestle in late winter 1983] or shortly thereafter, I was made aware that $1,000 had to be paid before either of them would tell us anything about the conversations they had with Hartman.” Again, when asked who had brought up the subject of the $1,000 “reward,” Bobo stated, “Well, we were already aware that was going to be one of the conditions before they even — we were aware of that — I was aware of that before that trip down there. I was aware that $1,000 had to be promised before either Frazier or King would even talk to us and one of the first things that — as I recall, that both of them wanted to inquire— are we — are we promised that the $1,000 for the right to talk to us or the privilege to talk [to] us, will it be paid, and we had already discussed that and we did give them that assurance.” At another point in his testimony, Bobo again made it clear that both men required money before they would even talk to the State: ‘Tes, they talked — both of them talked to us about — yes, they kept their end, as far as — that was the only thing — they had to have the money promise before either of them would talk to us.” Bobo confessed that “had we not promised the 1,000 bucks, neither of them would have talked to us.” To insist that there is significance in the money being delivered to King’s prison account rather than Frazier’s is to deny the realities of prison culture, or even “outside” culture, for that matter.
This proof shows that Frazier refused even to talk to the State’s representative about the petitioner’s statements unless King received $1000.00. That Frazier refused to speak with or to provide any information to the State until payment had been made to some third person was seriously damaging to his credibility and highly material. I also consider it material that once the State had agreed to pay King and the plan had been *113devised to record the petitioner’s incriminatory statements to Frazier, the tape recorder did not work. Both McCutchen and Bobo testified that they had serious doubts about Frazier’s credibility and that the tape recording was, in part, a way to confirm the truthfulness of his allegations. All of this information would have materially affected the credibility of Frazier’s testimony and should have been supplied to the petitioner under the principles of Brady, Giglio, and Bagley. In my opinion, “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different;” therefore, confidence in the outcome of the petitioner’s trial has been undermined. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
The petitioner also complains that the State failed to inform him of the promises by the State’s attorneys to testify on Frazier’s behalf at an upcoming hearing before the parole board. At trial, Frazier testified that the only promise he had received from the State in return for his testimony was the promise of protection from fellow inmates. Frazier denied any promise by the State to assist him in seeking clemency, although Hestle admitted his efforts on Frazier’s part but denied any connection between them and Frazier’s testifying at the petitioner’s trial. The record on post-conviction, however, shows that while District Attorney Pat McCutchen, and his assistant, Wade Bobo, did not directly promise to support Frazier’s attempts to obtain clemency, Hestle had assured Frazier that they would support him in his appearance before the parole board.
Q. I don’t guess you [Bobo] told Snake Frazier prior to the trial that you would appear on his behalf before the parole board, did you, sir?
A. I believe Mr. Hestle is the one who did tell him — I don’t know the time element involved, at some stage that we — that he was convinced that the District Attorney would inform the board of his cooperation and his testimony in the Nishiyama trial.
Q. How would Mr. Hestle have known that unless he got it from you or General McCutchen?
A. He assured him that we would testify.
Q. Did you tell Mr. Quillen [petitioner’s counsel] at any time prior to this trial that y’all had entered into an agreement through Hestle that you in fact would go in front of the parole board and you would in fact try to assist Raven Frazier in getting out of prison?
Hi ⅜ ⅜ ⅜ ⅜ ⅜
A. No, we didn’t tell Mr. Quillen that. That wasn’t the incentive though to get him to talk to us anyway, Mr. Hestle had just assured him that we would tell the truth, we would go before the parole board and we did that. I did that.
In fact, McCutchen wrote a letter on Frazier’s behalf and Bobo appeared as a witness for Frazier at that proceeding. Both mentioned his assistance in the petitioner’s case. While the omission by the State in fulfilling its duties of disclosure concerning the prosecutors’ efforts in Frazier’s parole proceedings might not by itself require reversal, inasmuch as the jury was made aware of Frazier’s upcoming parole hearing and his hopes in this regard, when considered in light of the State’s other omissions in this case, this failure to disclose and the appearance of deliberately using a third party, Hestle, as a technicality to insulate itself from the need for disclosure was a violation of the prosecutors’ obligation to respect those rules designed to protect the rights of the accused.
During Frazier’s cross-examination, the prosecution also allowed Frazier to misrepresent the facts concerning his relationship with the State. Frazier denied any deals other than a promise of protection, when he had promises, albeit indirectly through Hes-tle, that the prosecution would support him before the parole board. He also did not disclose that the State had promised to pay King $1000.00 for his testimony and denied asking the State for any favors. When asked on cross-examination whether “at any time” when he had talked with either McCutchen or Bobo or Hestle they had “made any written memoranda or any tapes” of what he had told them, Frazier had replied, “Not to my knowledge.” While technically correct, the answer is appallingly disingenuous in light of *114both Frazier’s and the State’s knowledge of the attempt to tape record the petitioner’s statements.
For these reasons I would find the petitioner’s conviction was obtained in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Tennessee Constitution and would vacate his conviction as well as the sentence and remand this ease for a new trial as to both guilt and sentence.
For the record, I join Judge Cornelius in his condemnation of the State’s performance in this case.