State v. Brenda Burns

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER SESSION, 1996
STATE OF TENNESSEE, )
FILED
C.C.A. NO. 02C01-9605-CC-00184
) October 9, 1997
Appellee, )
) Cecil Crowson, Jr.
) HENRY COUNTY Appellate C ourt Clerk
VS. )
) HON. JULIAN P. GUINN
BRENDA ANNE BURNS, ) JUDGE
)
Appellant. ) (Direct Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID L. RAYBIN JOHN KNOX WALKUP
Hollins, Wagster & Yarbrough, P.C. Attorney General and Reporter
2210 SunTrust Center
424 Church Street WILLIAM DAVID BRIDGERS
Nashville, TN 37219 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
ROBERT RADFORD
District Attorney General
P. O. Box 686
Huntingdon, TN 38344
OPINION FILED ________________________
REVERSED AND REMANDED
JERRY L. SMITH, JUDGE
OPINION
On October 19, 1995, a Henry County Circuit Court jury found Appellant
Brenda Anne Burns guilty of first-degree murder. Appellant received a sentence
of life imprisonment. On appeal, Appellant raises the following issues for review:
1) Whether the evidence is sufficient, as a matte r of law, to
support her c onviction for first-degree m urder;
2) Wh ether the trial court erred by failing to instruct the jury on
facilitation to commit first-degree murder and solicitation of first-
degree m urder;
3) Whether the trial court erred by proh ibiting A ppella nt’s
attorney from fully cross-examining a State’s witness;
4) Whether the trial court erred in denying Appellant’s motion for
a new trial based on newly discovered eviden ce or ineffective
assistance of counsel; and
5) Whether the cum ulative e ffect of tria l errors depriv ed Ap pellant
of a fair tria l.
After a painstaking review of the record, we have concluded that Appellant
was denied the effective assistance of counsel and that this case must be
revers ed an d rem ande d for a n ew trial.
Factual Background
On December 15, 1994, the Benton County Sheriff’s Department found the
body of Paul Burns, Appellant’s ex-husband, in the woods beside Mount Carmel
Road near Camden, Tennessee. The evidence submitted at trial and accredited
by the jury verdict revealed that Michael Spadafina and Vito Licari m urdered M r.
Burns at the request of Appellant and in exchange for $10,000.
At the tim e of the murd er, Ap pellant and Bu rns were d ivorced. B urns, a
member of the Columbo organized crime family, was living in Camden as part of
the federal witness protection program. Burns was approximately sixty-two years
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of age and suffered partial paralysis as the result of a stroke. Spadafina took
care of Burns. The two had lived in Spadafina’s girlfriend’s house but Burns later
moved into the Wis mer H otel, owned by A ppellant. Licari and Spadafina knew
each other from prison where they had become friends. Licari was living in New
York when Spadafina invited him to com e to Tenn essee to live with him . Licari
move d to Ten ness ee in O ctobe r of 199 4 durin g the tim e Bur ns wa s living wit h
Spadafina.
According to Licari who testified for the State, in late November or early
December, 1994, S padafin a, Licari, an d Appe llant met a t the W ismer H otel to
discuss the murder of Burns. The parties agreed that Spadafina and L icari wo uld
murder Burns a nd, in return , Appella nt would pay them $10,00 0, to be paid in
monthly installments of $800 per month.
On the morning of December 13, Spadafina and Appellant went to collect
checks in the amount of $29,750 from an insurance settlement that Burns had
received as the result of a house owned by Burn’s having burned. Later in the
day, Spadafina, Licari, and Burns met in Burns’ hotel room. Although Spadafina
had picked up all three insura nce s ettlem ent ch ecks , he told Burns that he had
only two of the checks and that he could not pick up the third check until the
following day. The three men then went to the bank to negotiate the checks.
Burns paid the bank for a loan, gave Spadafina approximately $1139 and
deposited $2000 into his m inor son’s accou nt. After Bu rns was droppe d off at his
hotel room, Spadafina told Licari that he had one of the insurance checks which
was made out for $50 00. Spadafina contacted Appellant and told her that if she
could cash the check, s he could keep $3500 and he would keep $1500 as a
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down payment for the murder of Burns. Appellant signed Burns’ name on the
back of the check, paying the bank $3500 for her mortgage on the Wismer Hotel
and giving $1500 to Spadafina.
Spadafina and Licari then dropped Appellant off at the hotel a nd wen t to
see Burns. After visiting, the three men and Burns’ son went to the liquor store.
After returning Burns’ son to the hotel, the three men went to dinner. On the way
back from dinner, Spadafina gave Licari, who was sitting in the back seat of the
car, a signal to strangle Burns. Licari tried to strangle Burns but was not strong
enough to do so. Spadafina stopped the car, came around to the passenger side
of the car, and slashed Burns’ throat. Spadafina and Licari then dragged Burns’
body up an embankment and left him.
Spadafina and Lica ri then we nt to a car wash to clean the car and dispose
of the knife. They next visited Appellant who washed their clothes. At trial,
Appellant denied any involve ment w ith her ex-h usban d’s mu rder. She admitted
that she signed the check made out to her husband but claimed that Burns had
called her earlier in the day saying that he was sending Spadafina with the
insurance check for her to cash at the bank. She claimed that he instructed her
to give Sp adafina $1500 .
I. Sufficiency of the Evidence
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Appe llant first alleg es tha t the evid ence prese nted a t trial is leg ally
insufficient to sus tain he r convic tion for firs t-degr ee m urder . Spec ifically, she
claims that there is no evidence, independent of the testimony of Licari, who was
an accomplice as a matter of law, to corroborate Licari’s testimony. When an
appeal challe nges the su fficienc y of the e videnc e, the s tanda rd of rev iew is
whether, after viewing the evidence in the light most favora ble to the State, any
rational trier of fact could have found the essential elements of the crime beyond
a reason able do ubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v.
Evans, 838 S.W.2 d 185, 1 90-91 (T enn. 19 92), cert. denied, 114 S. Ct. 740(1994); Tenn . R. App . P. 13(e). On a ppea l, the State is entitled to the strongest
legitimate view of th e evide nce a nd all reason able or leg itimate inferences which
may be drawn therefrom . State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).
This Court w ill not reweigh the evide nce, re-e valuate th e eviden ce, or sub stitute
its evidentiary inferences for those reached by the jury. State v. Grace, 493
S.W.2d 474, 476 (T enn. 1973 ). As the Supre me Co urt of Tennessee said in
Bolin v. Sta te:
This well-settled rule rests on a sound
foundation. The trial judge and the jury see
the witnesses face to face, hear th eir
testimony and observe their demeanor on the
stand. Thus the trial judge and jury are the
primary instrumentality of justice to determine
the weight and credibility to be given to the
testimony of witness es. In the trial forum
alone is there human atmosphere and the
totality of the evidence cannot be reproduced
with a written record in th is Court.
405 S.W .2d 768 (1966). T hus, a jury v erdict is en titled to grea t weight.
Once approved b y the trial court, a jury verdict accredits the witnesses
presented by the State and resolves all conflicts in favo r of the Sta te. State v.
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Hatche tt, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842(Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony,
and the reconciliation of conflicts in the proof are matters entrusted exclusively
to the jury as trier of fact. State v. She ffield, 676 S.W .2d 542, 547 (Tenn. 198 4).
A jury’s guilty verdict removes the presumption of innocence enjoyed by the
defendant at trial and ra ises a pre sump tion of guilt. State v. Tug gle, 639 S.W.2d
913, 914 (Ten n. 1982). The defendant then bears the burden of over com ing this
presumption of guilt on ap peal. State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977).
A conviction may not be based upon an accomplice’s testimony unless
there is some fact testified to, entirely independe nt of the accom plice’s testimony,
which taken by itself creates an inference not only that a crime has been
committed but also that the accused is implicated in the crim e. Mathis v. S tate,
590 S.W.2d 449, 455 (Tenn. 1979) (citing McKinney v State, 552 S.W.2d 787,
789 (Tenn. Crim. App. 1977)). The corroborative evidence may be direct or
entirely circumstantial, and it nee d not of itse lf be adeq uate to su pport a
conviction. It is sufficient to meet the requirements of the rule if it fairly and
legitim ately tends to connect the defendant with the commission of the crime
charge d. Sherrill v. Sta te, 321 S.W .2d 811, 815 (Tenn. 195 9).
The record revea ls the following corroborating evidence. Appellant signed
the name of her husband to an insurance check hours before his death. She
testified that before she cashed the check, Burns called her and said he was
sending her a ch eck for he r to cash a nd to give $1500 of the check to Spadafina.
Howe ver, a bank officer testified that when Spadafina and Burns came into the
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bank earlier that day, he heard Spadafina tell Burns that he did not have the
$5000 insurance check and that he wou ld pick it up th e following day. According
to the bank officer’s testimony, Burns would not have had the third insurance
check until the following day. Furthermo re, Licari claimed tha t Appellant gave
Spadafina $1500 as a down payment for murdering her ex-husband. Appellant
admitted giving $1500 to Spadafina. She also admitted that the killers visited her
at the hotel around 10:15 p.m. after committing the m urder . She trie d to exp lain
the visit by stating that she thought they had come to talk about Mr. Burns.
Finally, there was evidence that Appella nt had a mo tive to kill B urns. W hile
Appellant and Burns were married, they owned the Wismer Hotel. As part of the
divorce settlement, Appellant bought Burns’ interest in the hotel and was
indebted to him for $5 0,000. She a lso ass ume d the d ebt ob ligation s of the hotel.
Her total debt was $300,000. At the time of Burns’ murder, she was behind in her
paym ents to the bank. The prosecution theorized that Appe llant believe d that,
with Burn s’ dea th, she would not only be a ble to ma ke her d elinquen t payme nts
to the bank with the $3500 from the third insurance check but also would no
longer be indebted to him for $50,000. We find that there was adequate
corroboration of Licari’s tes timony a nd, there fore, that the evidenc e is sufficien t,
as a matter o f law, to sustain App ellant’s conviction for first-degree murder.
II. Failure to Instruct
Next Appella nt challen ges the failure of the trial judge to instruct the jury
on facilitation of first-degree murder and solicitation of first-degree murder. A trial
judge has a m andato ry duty to instr uct the jury on all lesser grades and lesser
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included offenses of the offense charged which are supported by the evidence.
State v. Trusty, 919 S.W.2d 305, 311 (Tenn. 1996). A criminal defendant has the
right to a correct and complete charge of the law given to the jury by the trial
judge. State v. Stephenson, 878 S.W.2d 530, 555 (Tenn. 1994) (citing State v.
Teel, 793 S.W .2d 236 , 249 (T enn. 19 90)); State v. Bryant, 654 S.W.2d 389, 390
(Tenn. 19 83)).
An offense is a lesser grade of a charged offense if it is classified along
with the charged offense in the statutory section outlining the charged offense.
Trusty, 919 S.W .2d at 310. For instance, in Tennessee Code Annotated
Sections 39-13-201 through 213, the legislature has divided criminal homicide
into the grades o f first-degree murd er, second-d egree m urder, voluntary
manslau ghter, criminally negligent homic ide, and v ehicular h omicide . Thus, one
can immediately determine whether an offense is a lesser grade by looking at the
statutes. An offense qualifies as a lesser included offense if the elements of the
included offense are a subset of the elements of the charged offens e and only if
the greater o ffense ca nnot be committed without also committing the lesser
offense. Trusty, 919 S.W.2d at 310 (citing Schm uck v. United States, 109 S. C t.
1443, 145 0-51 (1989 )).
Appellant was c harge d with a nd fou nd gu ilty of crim inal responsibility for
the conduct of another in the commission of first-degree murder purs uant to
Tennessee Code Annotated Section 39-11-402 (1991). Under that section, a
defendant is criminally responsible for the conduct of anoth er if, “[a]cting with
intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results o f the offens e, the per son so licits, directs, aid s, or attem pts
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to aid another person to co mm it the offense . . . .” Tenn. Code Ann. § 39-11-
402(2). Tennessee Code Annotated Section 39-11-4 03 provid es that a person
is crimin ally responsible for the facilitation of a felony if, “knowing that another
intends to commit a specific felony, but without the intent required for criminal
respon sibility under § 39-11-402(2), the person knowingly furnishes substantial
assistance in the comm ission of the felony.”
The Sentencing Commission Comments to Section 39-11-403 and State
v. Lewis , 919 S .W .2d 62 , 67 (T enn. C rim. A pp. 19 95), indicate criminal
responsibility for the facilitation of a felony is properly understood as a lesser
included offense of a completed offense where the conviction is based upon the
criminal responsibility for conduct of another. The Sentencing Commission
Com ments state that “[t]his section recognizes a lesser degree of criminal
respon sibility than that o f a party un der § 39 -11-401 . . . . A defendant charged as
a party may be found guilty of facilitation as a lesser included offense if the
defen dant’s degree of comp licity is insufficient to warrant c onviction a s a party.”
In Lewis , we conclude d that “virtually every time o ne is charged with a felony by
way of criminal responsibility for the conduct of another, facilitation of the felony
would be a lesser included offense.” 919 S.W.2d at 67.
Here, however, facilitation of murder was not fairly raised by any proof
submitted at trial and there is therefore no duty to instruct the jury with respect to
it. Trusty , 919 S.W .2d at 311 . According to the State, Licari and Spadafina
murdered Burns at the direction of Appellant and in exchange for $10,000.
Although she did not wield the murder weapon, evidence was presented that she
directed the murder and intended to benefit by it. On the other hand, Appellant
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denied any involvement at all in Burns’ death. Therefore, we find that it was not
erroneous for the trial court to fail to instruct the jury on the lesser included
offense of facilitation.
Pursua nt to Tennessee Code Annotated Section 39-12-102(a), a person
is guilty of the offense of solicitation when that person: “by means of oral, written
or electronic communication, directly or through another, intentio nally commands,
reques ts or hires another to commit a criminal offense, or attempts to command,
request or hire another to commit a criminal offense, with the intent that the
criminal offense b e com mitted . . . .” Ordinarily solicitation of first-degree murder
is neither a lesser included offense nor a lesser gra de of first degree m urder.
Certa inly it cannot be said that one can be found guilty of first-degree murder
through crimin al resp onsib ility for the c ondu ct of an other o nly if there is
solicitation of murde r. Further, solicitatio n of first d egree murd er is not a lesser
grade of first-degree murder since it is not part of the statutory scheme
criminalizing homicide and it is not codified in proxim ity to first-degree murde r.
This how ever does n ot end our inqu iry.
In the case of Howa rd v. State, 578 S.W .2d 83,8 5 (Ten n. 1979 ); the
Tennessee Supreme Court held that for jury instruction purposes, a lesser
included offense is determined in the context of the greater offense as the greater
offense is charged in the indictment. In the instant case, the indictment provides
that Appellant’s criminal responsibility is premised upon her allegedly having
solicited Licari and Spadafina to murder the victim. As the charge of criminal
responsib ility is alleged in this particular indictment it includes the crime of
solicitation as a lesser included offense. H oweve r, since the re is no evid ence to
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raise a doub t about the fact that the homicide was first degree murder, the
offense of solicitation would merge with the comp leted crim e. See Tenn. Code
Ann. Sec. 39-12-102, Sentencing Com mission Com ments . Thus, Appellant was
not entitled to a jury instruction regarding solicitation as a lesser included offense.
III. Cross-Examination o f Licari
Next Appe llant tak es issu e with th e trial court’s limitation of defense
coun sel’s cross-examination of Licari. At trial, during the cross-examination of
Licari, defense counsel attempted to question Licari about several threatening
letters he sent to Spadafina while they were inc arcerate d. In those letters, Licari
stated in very o ffensive terms that he plann ed to k ill Spadafina for “snitching” on
him. A s egme nt of one o f the letters re ads as follows:
[b]eing a snitch and g etting re venge is a big difference.
You and me know the real deal so I got my revenge
after you set me up. How does it feel to know that you
will never see the street again? Your bitch girlfriend is
the talk of Camden. It seems Tommy isn’t the only one
fucking h er . . . .
The trial judge allowed questioning concerning the letters under Ten ness ee Ru le
of Evidence 608(b) which pe rmits the c redibility of a witn ess to be attack ed with
character evidence in the form specific in stances of conduct. However, when
defense counsel began asking Licari what he meant by certain statements such
as “Ass-hole, when I catch up to you we will see how tough yo u are,” the State
objected. Defense counsel was allowed to continue, but the letters were not put
before th e jury.
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The propriety, scope, manner, and control of the examination of witnesses
is a matte r within the s ound d iscretion o f the trial judge . State v. Meeks, 876
S.W.2d 121, 128 (T enn. Crim. A pp. 1993). Such discre tion will not be interfered
with abse nt a show ing of abu se.
Appellant emphasizes in her brief that Licari’s le tters we re adm issible
under Tennessee Rule of Evidence 608 for the purpose of attacking Licari’s
credibility. How ever, R ule 60 8(b) sta tes tha t extrins ic evidence may not be used
to prove sp ecific acts. A ppellant a lso argue s that the letters are admis sible to
prove prejud ice or b ias. Te nnes see R ule of Evidence 616 permits impeachment
with extrinsic evidenc e to dem onstrate a witness ’ bias or pre judice. Thus, these
threatening letters w ere ad miss ible to attack Licari’s credibility. Although Licari
had been impeached through his criminal record and his admitted desire for
revenge, the letters express Licari’s ange r, ill motive , and vic iousn ess in g raphic
terms. Given the closeness of this case and the overwhelming importance of
Licari’s testim ony to th e pros ecutio n’s cas e, we b elieve th e exclu sion of the
letters constitutes error. Upon retrial of this cause Appellant should be allowed
greate r leewa y in the u se of th ese le tters to c ross-e xamin e Lica ri.
IV. New ly Discove red Evid ence a nd Ine ffective Ass istance of Cou nsel.
In her fourth issue, Appellant contends that information contained in two
affidavits entitle her to a new trial either because it constitutes newly discovered
evidence or, in the alterna tive, her trial cou nsel w as co nstitutio nally defec tive in
failing to pursue the information. The first affidavit contains a statement taken
from a woman named Ruby Blankenship. In her statement and at the hearing on
Appe llant’s motion for new trial, she stated that she worked for Burns and Burns’
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son, Paul Frappola, as a housekeeper. She claimes that she overheard a
conversation where Frappola said that he brought Spadafina to Tennessee to kill
burns. She a lso claim ed sh e hea rd Fra ppola tell Spa dafina to “go a head and k ill
him.” The second affidavit was taken from Cathy Sue Decker, Ruby
Blank ensh ip’s mother. In it, Ms. Decker state d that she overh eard Frappola say
“we got to whack this old m an,” and we have to “get rid of Paul Burns.” The trial
court found that this evidence was not ne wly disc overe d and that trial c ouns el’s
failure to call these two witnesses did not constitute ineffective assistance of
coun sel.
To justify a new trial based on newly discovered evidence, the defendant
must show that the evidence could not have been disco vered with rea sona ble
diligence, the evidence was material, and the evidence was likely to change the
result of the trial if accepted by the jury. State v. Goswick, 656 S.W.2d 355, 358-
59 (Tenn. 1983). The evidence contained in the Blankenship and Decker
affidavits was n ot new ly disco vered . Durin g pretr ial disco very, trial counsel
received a copy of an interview of an investigator Smith with the Camden police
departm ent, taken by the Ten nesse e Bure au of Inve stigation. It showed th at Mr.
Smith had interviewed Ms. Deck er who had called the police m onths before
Burns died bec ause s he was conce rned for h is safety. Another document
contained an interview of Ms. D ecker. It stated that she had heard Frappola and
Spadafina talking about “wh acking Pa ul Burns.”
W e do however find that trial counsel’s failure to interview these two
potential defense witnesses and to present their testimony to the jury deprived
Appellant of the effective assistance of counsel. When an appeal challenges the
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sixth Amendment right to effective assistance of counsel, the appellant has the
burden of establishing that the advice given or services rendered by the attorney
fell below the range of competence demanded of attorneys in criminal cases.
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). Under Strickland v. Washington,
466 U.S. 668, 687 (1984), there is a two-prong test which places the burden on
the appellant to show that (1) the representation was deficient, requiring a
showing that counsel made errors so serious that he or she was not functioning
as “counsel” as guaranteed a defendant by the Sixth Amendment, and (2) the
deficient representation prejudiced the defense to the point of depriving the
appellant of a fair trial with a re liable resu lt. Prejudice is shown by demonstrating
a reas onab le probab ility that, bu t for cou nsel’s unpro fessio nal erro rs, the re sult
of the proceeding would have been different. Id. at 694. Under the Strickland
test, a reviewing court’s scrutiny “must be hig hly defe rential. It is all too tempting
for a defe ndan t to sec ond-g uess coun sel’s assistance after conviction or adverse
sentence . . . .” Id. at 689 . In fact, a petition er cha llengin g his cou nsel’s
representation faces a “strong presumption that counsel’s conduct falls within the
wide range of reasonab le professional as sistant . . . .” Id. at 689.
As noted above, at the hearing on the motion for a new trial, trial counsel
testified that during discovery he received a copy of a Tennessee Bureau of
Investigation memorandum referencing Ms. Decker’s statement that she had
heard Frappola threaten the victim. The memorandum also states that Ms.
Deck er’s daughter, M s. Blankens hip, developed a short, romantic rela tionsh ip
with Frappola. Finally, the memorandum indicates that Ms. Blankenship has
criminal charges ag ainst her and w ould be willing to exch ange inform ation for
some type of “deal.” Trial counsel testified that he did not interview Ms. Decker
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because her statements did not exclude Appellant as a suspect. He explained
that his failure to interview Ms. Blankenship was because there was no statement
by her in the T.B.I. material. Trial counsel admitted that when, at the behest of
Appe llant’s current attorney, Ms. Decker and Ms. Blankenship were interviewed
in preparation for the new trial hearing, the affidavits they provided consisted of
proof tending to sho w that Paul Fra ppola rather tha n Appellant pro cured the
murder of Mr. Burns. Counsel stated that had he had this inform ation prior to trial
he wou ld certainly h ave use d it in his defe nse of A ppellant.
In State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986), our Supreme
Court stated:
Defense counsel has a duty to ma ke rea sona ble
investigations or to make a reasonable decision that
makes particular investigations u nnecess ary. A
particular decis ion no t to inves tigate m ust be directly
assessed for reasonableness in all the circumstances,
applying a hea vy me asure of defe rence to cou nsel’s
judgments.
Even in light of the above-qu oted standa rd of review in cases such as this, we are
compelled to conclude that the decision not to pursue interviews with Ms. Decker
and Ms. Blankenship was not reaso nable when assessed in connection with the
facts of this case.
Trial couns el knew or shou ld have kn own tha t four (4) m onths before
Appe llant’s trial Spada fina ha d bee n con victed o f first deg ree m urder for his
participation in the murd er of Pau l Burns. See State v. Spadafina, No. 02C01-
9601-CC-00001, 1997 WL 1239 (Te nn. Crim. App. Jan. 2, 1997). He also knew
that Vito Licari had pled guilty to the murder charge against him and that Licari
would testify against Appellant. The State’s theory of the case was that
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Spadafina and Licari had been hired by Appe llant to k ill Mr. Bu rns. T he Sta te’s
case rested almost entirely on the testimony of Licari who testified out of revenge
and pursua nt to a plea bargain . Although Licari’s tes timon y is suffic iently
corroborated under the accomplice corroboration rule, the corroborative
testimony is not great, nor would it, standing alone, be sufficient to convict
Appellant of murder. Trial counsel had also received durin g discove ry T.B.I.
mate rials indicating that Ms. Decker had both seen and heard threats by
Frap pola and that Ms. Blank ensh ip mig ht have inform ation to excha nge in return
for a “deal” on her own criminal charges. Given Licari’s reprehensible
background and the relative paucity of evidence other than his testimony that
Appellant procured the murder of Burns, evidence that Mr. Frappola had a motive
and a stated desire to kill or have Spadafina kill Burns would have been a
powerful tool in raising a reasonable doubt as to Appellant’s alleged participation
in the crim e. Inde ed, trial counsel admitted that had he developed the
information contained in the affidavit of Ms. Decker and Ms. Blanke nship prio r to
Appe llant’s trial, he would have used that information in her defense. We do not
typically judge counsel’s decisions in hindsight; however, we cannot conceive,
based on the record before us, why counsel would not have developed
informatio n such as this and used it at trial. We must therefore conclude
counsel’s failure in this regard is not reasonable.
In addition we believe Appellant has demonstrated a reaso nable p robability
that the result of the trial w ould h ave be en diffe rent ha d evide nce o f Frapp ola’s
threats been put before they jury. It must be kept in mind that the defense in a
criminal case need only rais e a rea sona ble do ubt in the mind of the jury in order
to avoid a conviction. Given that the State’s case against Appellant rested almost
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entirely on the disrep utable figure of Vito Licari, that ma ny of the players in this
drama com e from the org anize d crim e milieu, and that the deceased was
involved in fraudulent schemes at the time of his murder, we believe showing that
a person other than Appellant had motive and expressed the desire to kill the
victim m ight very we ll have crea ted a rea sonab le doub t as to Ap pellant’s gu ilt.
W e therefore reverse this case due to our conclusion that Appellant was
denied the effective assistance of couns el in violation o f the Sixth A mend ment to
the United States Constitution and Article I, Section 9 of the Constitution of
Tennessee. In view of our holding, it is unnecessary to address the claim that
cum ulative errors depriv ed Ap pellan t of due proce ss of law . This c ase is
rema nded to the tria l court fo r a new trial.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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