Judge Mary Tabor, who wrote the opinion on behalf of the Court of Appeals, wrote, "MIller is persuasive in his argument that the publication of information about an accomplice's conviction may be so inherently prejudicial that exposure would taint a prospective juror. But here we do not have to decide if the court erred in denying the defense challenge for cause to juror Stova because even assuming error, Miller cannot show prejudice."
The appeal also contested the use of co-conspirator statements in testimony at trial. Witnesses testified at both trials in regard to Cobbins approaching them for assistance in the crime of Teresa Miller's murder. Both included statements Cobbins made to them, while Cobbins himself did not take the stand in Miller's trial. Miller argued that the witnesses' statements were hearsay.
The reason for the objection changed between the trial and oral arguments offered to the Court of Appeals. Trial counsel considered these statements as "idle chatter" than serious invitations for them to join the conspiracy.
"Miller attacks the district court's determination that a conspiracy existed and abandons the argument that Cobbins did not make the statements in furtherance of the conspiracy," Tabor wrote. "A party must be consistent in his legal theory for relief."
The appeal also challenged the accomplice testimony, provided by Bernard Bussey. Bussey was the individual who drove Cobbins to Knoxville to commit the crime. Trial counsel is blamed for not asking for a jury instruction requiring the jurors to find evidence to corroborate the out of court statements attributed to Terry Cobbins, as well as Bussey. The problem with the argument Miller's appellate counsel chose is that Cobbins did not testify.
"Miller's brief highlights the perceived prejudice from the out-of-court declarations by Cobbins, calling them 'the most damning evidence offered by the State,'" Tabor wrote. "But Miller does not address any prejudice from Bussey's testimony and we find none."