Frank E. Adams v. Flora J. Holland, Warden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0847n.06
Filed: October 17, 2005
Case No. 04-5358
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRANK E. ADAMS,
Petitioner-Appellant,
v.
FLORA J. HOLLAND, WARDEN,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
BEFORE: BOGGS, Chief Judge; BATCHELDER and GIBBONS, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Petitioner Frank Adams, a convicted
murderer, appeals the order of the district court dismissing his petition for a writ of habeas corpus,
arguing that the Tennessee trial court violated his Sixth Amendment rights under the Confrontation
Clause when it admitted an out-of-court statement by his non-testifying co-defendant, Timothy
Crowell, that Adams had killed Thomas Weser. Because Crowell’s statement was admitted for a
non-hearsay purpose, consistent with clearly established Supreme Court precedent, we affirm the
district court’s order dismissing Adams’s petition.
BACKGROUND
In the early morning hours of February 5, 1989, Adams and Crowell robbed a convenience
store and, an hour or so later, robbed and murdered Timothy Weser, a student at Vanderbilt

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University. Adams and Crowell were indicted as co-defendants in the murder of Weser, and their
cases were severed for trial. Adams was tried first. Although it was not entirely clear which
defendant committed which specific acts in the events surrounding the murder, the state’s theory was
that Crowell had robbed the convenience store while Adams waited in the car as the getaway driver,
and that later that night, the two men switched places and Crowell waited in the car while Adams
robbed and murdered Weser.
The state charged Adams with felony murder and aggravated robbery, and attempted to show
that Crowell and Adams were carrying out a scheme whereby they would take turns committing
robberies to obtain money with which to buy illicit drugs. As part of its proof, the state elicited
testimony from Lisa Cantrell-Williams, Adams’s former girlfriend, that she overheard the two men
planning the robberies earlier that night, and that Adams was acting suspiciously when he returned
home. On his cross examination of Cantrell-Williams, Adams sought to admit testimony that
Cantrell-Williams had overheard Crowell making statements suggesting that it was he, and not
Adams, who had done the shooting. The state objected to this testimony because it would not have
the opportunity to cross examine Crowell, who had asserted his right against self incrimination, but
the court ruled that the testimony was admissible under the unavailable-declarant exception to the
hearsay rule. Before the trial resumed, the state notified the court that it intended to introduce other
out-of-court statements to impeach the statement by Crowell, under Tenn. R. Evid. 806, and the
court indicated that it would allow impeachment evidence.
After Adams elicited Crowell’s self-incriminating statement from Cantrell-Williams, the
state informed the court of its intention to introduce a statement made by Crowell to Detective Mike
Smith, in which Crowell asserted that it was Adams who had killed Weser. Specifically citing the

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Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985), the court indicated that it
would permit Smith to testify to Crowell’s inconsistent statement, but that the testimony was
admissible only for the purpose of impeaching Crowell’s self-incriminating statement testified to
by Cantrell-Williams, and not as substantive evidence against Adams. After Smith testified that
Crowell had told him Adams had shot Weser, the trial judge gave a lengthy limiting instruction to
the jury, admonishing it that Crowell’s statement was to be considered only for the purpose of
judging Crowell’s credibility, not as substantive evidence against Adams. Adams was ultimately
convicted of felony murder and aggravated robbery, for which he received a sentence of life in
prison plus twenty years.
The Tennessee Court of Criminal Appeals (TCCA) affirmed Adams’s conviction, including
the trial court’s handling of the Confrontation Clause issue. See State v. Adams, 859 S.W.2d 359
(1992). Although the TCCA did not cite the Supreme Court’s decision in Street, it did determine
that Smith’s testimony relaying Crowell’s contradictory statement constituted valid impeachment
(i.e., non-hearsay) evidence under Tenn. R. Evid. 806, and that the trial court had properly instructed
the jury that such testimony could be considered only for the limited purpose of impeachment. See
id. at 363. Adams raised the Confrontation Clause issue again in his federal petition for habeas
corpus. The federal district court initially dismissed this claim as procedurally defaulted. A panel
of this court affirmed, Adams v. Holland, No. 00-6575, 2003 WL 1786649 (6th Cir. April 4, 2003),
but reconsidered its opinion after considering a recently enacted Tennessee procedural rule, and then
remanded Adams’s case to the district court for a ruling on the Confrontation Clause claim on the
merits. Adams v. Holland, 330 F.3d 398, 407 (6th Cir. 2003). The district court then dismissed
Adams’s claim on the merits, holding that, in light of Street, the TCCA’s decision was neither

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contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See
28 U.S.C. § 2254(d)(1). We granted a certificate of appealability on the Confrontation Clause issue.
ANALYSIS
In Tennessee v. Street, 471 U.S. 409 (1985), the defendant testified at trial that his confession
had been coerced by the Sheriff, who had read to the defendant his accomplice’s confession and
directed him to “say the same thing.” The State then elicited the testimony of the Sheriff, who
denied the defendant’s story and read to the jury the accomplice’s confession, pointing out the
differences between the two confessions. The Supreme Court distinguished between the use of
hearsay evidence as substantive evidence against a criminal defendant, and the use of such evidence
for a non-hearsay purpose, such as rebuttal or impeachment, and held that the latter use “raises no
Confrontation Clause concerns.” Id. at 413-14. The Court noted that the accomplice’s confession
had not been introduced to prove the circumstances of the murder, but instead had been introduced
to rebut the defendant’s claim that his confession had been coerced. Id. This non-hearsay use, the
Court held, was consistent with the Confrontation Clause. Id. at 417.
Adams did not see fit to mention Street in his initial brief on appeal, relying instead upon
Bruton v. United States, 391 U.S. 123 (1968), which held that a co-defendant’s confession, which
also implicated the defendant, could not be admitted in the joint trial of the two conspirators without
violating the non-declarant defendant’s rights under the Confrontation Clause unless the co-
defendant was available and subject to cross examination. Id. at 126. Adams’s case is
distinguishable from Bruton, however, not only because Adams and Crowell were not tried jointly,
but because the testimony in Adams’s case was admitted for the non-hearsay purpose of impeaching
hearsay testimony introduced by Adams. Moreover, the Street Court, whose holding squarely

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dispenses with Adams’s Confrontation Clause argument, explicitly distinguished Bruton. See Street,
471 U.S. at 413-16 (noting that unlike Bruton, in which the co-defendant’s confession was
introduced to prove the truth of its assertions, the accomplice’s confession in Street was introduced,
not to prove the truth of its content, but for the non-hearsay purpose of rebutting the defendant’s
claim of coercion).
Adams relies also on Crawford v. Washington, 541 U.S. 36 (2004), but this reliance is
likewise unavailing. First, because the TCCA decision affirming Adams’s conviction was handed
down in 1992, the Supreme Court’s 2004 Crawford decision is inapplicable to our analysis. See 28
U.S.C. § 2254(d)(1) (writ of habeas corpus may not be granted unless the state court decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States”). See also Williams v. Taylor, 529 U.S. 362,
412-13 (2000) (“the phrase ‘clearly established Federal law, as determined by the Supreme Court
of the United States’ . . . refers to the holdings, as opposed to the dicta, of this Court's decisions as
of the time of the relevant state-court decision”). But even if Crawford were retroactively applicable
to this habeas proceeding, it provides no help to Adams. Overruling Ohio v. Roberts, 448 U.S. 56
(1980), Crawford held that out-of-court testimonial statements admitted against a defendant, when
the defendant had no opportunity (either before or during trial) to cross examine the witness, violate
the Confrontation Clause, regardless of the reliability of the admitted statements. Crawford, 541
U.S. at 68-69. But the Court expressly said, citing Street, that “[t]he [Confrontation] Clause . . . does
not bar the use of testimonial statements for purposes other than establishing the truth of the matter
asserted.” Id. at 59 n.9. Because co-defendant Crowell’s statement was admitted via Detective

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Smith solely for the non-hearsay purpose of impeachment, it “raises no Confrontation Clause
concerns.” See Street, 471 U.S. at 414.
Faced with the insurmountable burden presented by Street, Adams identifies three instances
in the prosecutor’s closing argument where he alleges that the prosecutor improperly used Crowell’s
statement as substantive evidence against Adams. The first snippet (“Timothy [Crowell] says I
didn’t do it, Frank Adams did it.”) takes the prosecutor’s statement woefully out of context. The
prosecutor’s full statement reads as follows: “[Adams] did exactly what Timothy Crowell did when
the police questioned him about the shooting. Yes, I know about it. I was there, but I didn’t do it.
Timothy Crowell did it. Timothy says, I didn’t do it. Frank Adams did it.” No fair reading of the
complete statement supports Adams’s contention that the prosecutor used Crowell’s statement as
substantive evidence of Adams’s guilt. The prosecutor simply used that statement to show that
Adams and Crowell were each strategically pointing the finger at the other. The other two
statements cited by Adams do not even refer to the statement Crowell made to Detective Smith;
rather, those statements are found in the testimony of another witness, Susie Franklin, which is not
challenged on appeal.
We find no basis for Adams’s claim that the prosecutor improperly used Crowell’s statement,
which was admitted solely for impeachment purposes, as substantive evidence in the closing
argument. And we note that even if the prosecutor did use Crowell’s statement improperly in his
closing argument—a claim that should have been, but was not, brought as prosecutorial
misconduct—Adams does not claim that he made any objection to the prosecutor’s closing
argument, nor does he claim that the jury was not properly instructed that the prosecutor’s argument

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was not evidence. The prosecutor’s use of the statement in argument did not transmute the
statement’s evidentiary use from impeachment to substantive evidence of guilt.
CONCLUSION
The TCCA’s decision rejecting Adams’s Confrontation Clause claim was entirely consistent
with the principle set out in Tennessee v. Street, 471 U.S. 409 (1985), and was, therefore, neither
contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See
28 U.S.C. § 2254(d)(1). We therefore AFFIRM the district court’s judgment dismissing Adams’s
petition for a writ of habeas corpus.

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