         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       MAY 2000 Session

         MICHAEL JOSEPH SPADAFINA v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Benton County
                            No. CR-451    Julian P. Guinn, Judge



                    No. W1999-00268-CCA-R3-PC - Filed October 23, 2000


The Benton County Circuit Court dismissed Michael Joseph Spadafina’s petition for post-conviction
relief in which Spadafina raised a number of issues of trial error and ineffective assistance of trial
counsel in his conviction of first degree murder. On appeal, the petitioner limited his issues to the
ineffective assistance of counsel in not seeking an individual, sequestered voir dire of the jury and
in not challenging the use of damaging character evidence. Because we conclude that the petitioner
failed to carry his post-conviction burden to prove his claims by clear and convincing evidence, we
affirm the dismissal of the post-conviction petition.

               Tenn. R. App. P. 3; Judgment of the Trial Court is AFFIRMED.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.


Victoria L. Dibonaventura, Paris, Tennessee, for the Appellant, Michael Joseph Spadafina.

Michael E. Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, G. Robert
Radford, District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                The petitioner, Michael Joseph Spadafina, appeals the Benton County Circuit Court’s
dismissal of his petition for post-conviction relief. In 1995, a Benton County jury convicted the
petitioner of the first degree murder of Paul Burns, and the trial court sentenced the petitioner to life
imprisonment. This court affirmed the petitioner’s conviction. See State v. Spadafina, 952 S.W.2d
444 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1997). In this appeal, the petitioner presents
the following issues for our review:
               1. Whether trial counsel was ineffective in failing to move the trial
               court to order individual voir dire in the jury selection process.

               2. Whether trial counsel was ineffective in failing to challenge, or in
               one case, sponsoring evidence which reflected negatively on the
               petitioner’s character.

Because we conclude that the petitioner failed to carry his post-conviction burden of showing that
trial counsel was ineffective, we affirm the trial court’s dismissal of the post-conviction petition.

                                                  I. FACTS.

A. The Petitioner’s Trial.

                In a sharply contested trial, the state theorized that Brenda Burns, the victim’s ex-
wife, hired the petitioner and his houseguest, Vito Licari, to kill the victim and that the two men,
acting in concert, murdered the victim on December 13, 1994. The state relied heavily upon Licari’s
testimony that the petitioner cut the victim’s throat while Licari tried ineffectually to strangle the
victim. The petitioner admitted that he was present during the homicide but denied the murder-for-
hire arrangement and denied participating in the killing.

                 In Licari’s direct testimony as a state witness, he admitted he was a “thief” who had
spent a total of eighteen years in prison for various offenses including burglaries and larcenies. He
also acknowledged that he was HIV positive because of his use of needles to inject cocaine. He
admitted that he planned to plead guilty to the first degree murder of Paul Burns and would receive
a life sentence pursuant to a plea agreement.

                Licari testified that Brenda Burns agreed to pay installments totalling $10,000 to hire
the murder of Paul Burns. He detailed the use of fire insurance proceeds to finance the $1500 down
payment on the murder contract. According to Licari, an insurance company paid a house fire loss
claim to Paul Burns, and Brenda Burns converted some of the proceeds to use as the down payment.
Licari testified that the petitioner claimed to have burned the victim’s house in exchange for the
victim’s promise to pay him $5,000.1 Licari claimed that the petitioner wanted to delay the murder

       1
               On direct examination, L icari, as a state witness, testified as follows:

               Q. Okay; now, did you and Mr. Spadafina come up – or was there some discussion
               concerning killing Paul Burn s?

               A. At one point there was. Ever since I was down her e, which was a bout a mo nth
               and a half, Michael was telling me how much he hated this old man, and somebody
               wanted him dead. But he was owed money by Mr. Burns. I believe there was a
               property fire. And Michael was sup posed to get five thousa nd dollars from Mr.
               Burns. And he was owed twenty-three hundred dollars. So he told me Mr. Burns
                                                                                                   (continued ...)

                                                        -2-
until after the insurance proceeds were paid so that Paul Burns could pay the petitioner the $2300
Burns still owed on the arson fee.

               Licari testified that “Michael Spadafina despised [the victim]. He may tell you he
loved him, but he despised him.”

                Licari further testified that the petitioner signed an appearance bond on charges
against the victim stemming from a check-kiting scheme in which all three men were involved. He
described in some detail his role in assisting the petitioner and the victim to defraud banks by
“kiting” checks.2


       1
           (...continued)
                    cannot be killed or die u ntil he has paid the rest of the mo ney.

                   Q. Do yo u know why h e owed him that money?

                   A. Well, from Michael Spadafina, the story I got was that there was an arson at the
                   property that Mr. Burns owned an d Mich ael Spad afina had do ne it and he o wed him
                   five thousand dollars for d oing it.

                   Q. All right; did the house - - you don’t know when that happened?

                   A. That was prior to me coming to Tennessee.

       2
                   On direct examination, L icari testified as follows:

                   Q. [by G eneral Rad ford:] Just go ahead and explain wha t they were do ing - - -


                   A. Well, prior to my coming to Tennessee Michael had told me when he was down
                   there the last time, in late October, about these bank scams he was pulling with Mr.
                   Burns, and if I would come down to Tennessee he would guarantee me a thousand
                   dollars. So that’s how I ended up knowing about it. I have driven the car numerous
                   times with Michael Spad afina and Paul Burn s when they did these bank scam s.

                   Q. What would they do?

                   A. What they would do is open false bank accounts, depositing a hundred dollars
                   in a bank to open the account, go to another bank, deposit a hundred dollars, then
                   open another account. Once they received checkbooks, they give you temporary
                   checkbo oks or wha tever you wa nt to call them, the y would go from one b ank, write
                   out a check from the other account and cash the check, or would deposit it rather,
                   and withdraw a certain amount on the check. And they were doing this back and
                   forth in different counties. And that’s how we were living.

                   Q. They were kiting chec ks?

                   A. Yes, sir.
                                                                                                           (continued ...)

                                                             -3-
                After Brenda Burns converted some of the insurance proceeds and paid the initial
installment for the murder, Licari and the petitioner decided to kill Paul Burns that night during a
drive in the petitioner’s car. According to Licari, the petitioner drove the car, Paul Burns occupied
the front passenger seat, and Licari sat in the back seat. When the petitioner gave a signal, Licari
unsuccessfully attempted to strangle Burns with a cord. The petitioner stopped the car, came around
to the passenger side, and cut the victim’s throat with a knife from his kitchen. Licari testified that
the two then carried the body to the top of an embankment.

                 In his case-in-chief, the petitioner presented evidence which suggested that it was the
victim and Licari who were kiting checks and that the petitioner had himself been victimized by one
of the victim’s bad checks. He showed that the victim was an elderly, diabetic man, that the
petitioner and the victim “were real close, good friends,” and that after the victim’s house burned,
the petitioner provided shelter for the victim and assisted him with meals, laundry, medication and
transportation. The victim was once married to the petitioner’s aunt. The petitioner was attentive
to the victim’s ten-year-old son. The petitioner showed that he attended a local Presbyterian church,
had been gainfully employed at various jobs since arriving in Tennessee, was paying for a house and
eight acres where he and his fiancée milked a cow and raised chickens, and provided the charity of
food and shelter for both the victim and Licari. Through investigating officers and a paramedic,
the petitioner attempted to show that the victim’s body had been dragged, not carried as Licari
claimed, up the embankment to where it was found. Finally, the petitioner presented three witnesses,
including one who was incarcerated in the Benton County jail with Licari after his arrest for the
murder, who testified that Licari admitted that he, acting alone, killed Paul Burns and that he
described the murder in detail. Audrey Coppola, the petitioner’s fiancée, testified that Licari
“disliked [the victim] intensely,” and her ten-year-old son testified that Licari said that he would kill
the victim “one of these days.”

                The petitioner testified that he and the victim became acquainted when both lived in
New York. The victim came to Tennessee under the federal witness relocation program and asked
the petitioner to join him in this state. The petitioner moved to Tennessee in the summer of 1994.


       2
           (...continued)
                    Q. Now, that’s how you got you income?

                  A. Well, Michael was giving me money and I was getting part of the money from
                  the checks, yes.

                  Q. Okay; so you were in o n it?

                  A. Yes, sir, I was.
                  ...
                  Q. All right; and did the law b egin to catch u p with you or with - -
                  ...
                  A. With M r. Burns, the w arrants were falling in different co unties. And he had to
                  appear in different counties for different cases on the check kiting.



                                                         -4-
 Later that year, the petitioner invited Licari, with whom he had been incarcerated in New York, to
come to Tennessee as well. Audrey Coppola had urged the petitioner to invite Licari to stay with
them in Tennessee because she was concerned about Licari’s cocaine addiction and his HIV
infection.

              The petitioner denied any involvement in the Burns house fire and stated that he and
the victim were at the bank when the house caught fire. He also denied any involvement in the
victim’s check-kiting activities.

                The petitioner testified that he and Mrs. Burns gave the victim all of the insurance
checks and that, from the proceeds, the victim gave the petitioner $2,200, part of which the victim
paid toward the petitioner’s home mortgage note. The petitioner denied any agreement with Mrs.
Burns to kill the victim.

                 In the petitioner’s version of the fatal car ride, Licari unexpectedly attacked the
victim. The petitioner ran the car off the road trying to reach for the rope Licari held around the
victim’s neck. Licari then threatened the petitioner with a knife and ordered him to stop the car.
After the petitioner stopped and began to walk away, Licari ordered the petitioner to return. The
petitioner testified that when he returned to the car, the victim was dead and Licari threatened to kill
him if he did not cooperate in disposing of the body and concealing the crime. However, during the
ensuing two days, the petitioner declined to report the murder. He testified that he feared that Licari
would kill him or implicate him in the murder and would kill his fiancée and her two children. He
also declined to report the murder when he attended court the day after the murder as the surety on
the victim’s bond, when the petitioner was in the presence of numerous law enforcement officers.
He also met with the sheriff of Humphreys County and asked about being relieved from the victim’s
appearance bond. During the visit, the petitioner never mentioned the homicide or the need to be
protected from Licari.

                At trial, the state argued to the jury in closing,
                There’s been no proof, really, of any legitimate income at all that [the
                petitioner] made last year. But I submit to you that the proof in this
                case has shown that he had some other irons in the fire, that he and
                Paul Burns were riding around West Tennessee kiting checks. . . .
                And the proof has also shown that on September the 20th the
                defendant, Michael Spadafina, called [the insurance agency] and said
                that Mr. Burns wants . . . to increase the insurance coverage on that
                house . . . [to] a total of thirty thousand. Well, fifteen days later . . .
                that house mysteriously burns down. And in the ensuing weeks and
                months it’s Michael Spadafina who is calling the insurance adjusters,
                saying when are the checks going to be ready, what can I do to help
                you get the money to Mr. Burns.
                                 ...



                                                   -5-
                              But there’s another opportunity for the defendant to
               make some money. He enters into negotiations with Vito Anthony
               Licari, the hardened criminal that he brought to Tennessee, and
               Brenda Burns, the ex-wife of Paul Burns. . . . A great opportunity
               to make some money.

                               A deal was struck, a bargain.

               After hearing the evidence, the jury convicted the petitioner of the first degree murder
of Paul Burns, but was unable to agree on a sentence. Therefore, the trial court sentenced him to
imprisonment for life.

B. The Post-Conviction Hearing.

                In the petitioner’s post-conviction hearing, he introduced a transcript of the trial
proceedings and called his trial counsel, Terry J. Leonard, to testify. Mr. Leonard acknowledged
that, before the trial began, he was concerned about pretrial newspaper publicity. The trial judge
preliminarily questioned the prospective venire, followed by counsel’s voir dire. Prospective jurors
were either excused or retained based upon their general answers to questions about their prior
knowledge of the case, without the prospective jurors being pressed to state “what it was that they
heard.” Mr. Leonard testified that he did not explore the details because he feared that the answers
to probing questions would taint the remaining jury pool. After discussion with the petitioner, he
decided not to request a venue change, nor did he ask the trial court to order individual voir dire of
prospective jurors. Mr. Leonard felt that, based upon his twelve years experience practicing law in
Benton County, he knew most of the people and was comfortable with their “philosophy” in
disposing of criminal cases. He believed the local “point of view” would benefit the petitioner.

               Mr. Leonard discussed each juror challenge with his client, and the two of them
collaborated on decisions to excuse and retain jurors, including one juror who was the brother-in-law
of a deputy sheriff in Benton County.

                 Prior to trial, Mr. Leonard was aware that the fire insurance proceeds played a part
in the state’s theory of murder for hire, and he knew that the petitioner was a surety on the victim’s
bond in the check-kiting or bank fraud charges. Mr. Leonard had reviewed five prior statements
made by Licari; however, he was unaware that Licari would testify at trial that the petitioner was
involved in the arson and check-kiting. Consequently, he filed no pretrial motion to exclude this
evidence. He thought evidence about the source of the money that the victim paid to the petitioner
or on his account “would come in, and, in fact, that would be admissible.” Nevertheless, when
testimony was introduced at trial that the petitioner was the arsonist, Mr. Leonard did not object and
did not ask for a jury-out hearing. Neither did he effectively object nor did he seek a hearing when
trial testimony implicated the petitioner in the check-kiting scheme.




                                                 -6-
                Mr. Leonard testified that the defense theorized that the petitioner “did not kill or act
in concert” with Licari to kill Paul Burns. He opted for a strategy to sully both Licari and the victim,
and to this end, he intended to show the jury that the victim was a Mafia-type criminal from New
York who came to Benton County, Tennessee under the federal witness relocation program. The
petitioner agreed to the strategy of putting the victim “on trial.” In light of this strategy, counsel
believed that the information which was imparted to the jury about the defendant’s role in arson and
check-kiting was not prejudicial to the defense because this information confirmed the victim’s and
Licari’s involvement in criminal activity. However, Mr. Leonard acknowledged that this strategy
ultimately allowed the state to argue that, because the petitioner was an arsonist and a check-kiter,
he would commit murder for hire. Mr. Leonard testified on cross-examination that, had the state not
introduced evidence of the victim’s and Licari’s criminal lifestyles, he would have done so. To this
end, he willingly allowed the jury to know that the petitioner had been incarcerated in New York to
inform the jury of Licari’s criminal past. He tried to develop proof to show that although the victim
and Licari had persisted in their errant ways, “out doing whatever criminal activity they wanted to
do,” the petitioner was leading a responsible lifestyle in Tennessee and that he “was out trying to
work” in order to support his family.

                Finally, Mr. Leonard testified that he and his office staff invested many, many hours
in preparation for the defense. Ultimately, when the case went to the jury, Mr. Leonard believed they
had succeeded in presenting an optimum defense that would win an acquittal.3

                                  II. GOVERNING PRINCIPLES OF LAW.

A. Post-Conviction.

               The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the appellate
court accords to the trial court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d
572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).




B. Ineffective Assistance of Counsel.


         3
                   The petitioner did not testify at the post-conviction hearing; however, he addressed the court and
voiced his disagreem ent with the man ner in which p ost-convictio n counsel ha ndled the p roceedin g. Primarily, he was
aggrieved that she limited her foc us to provin g grounds of ineffective assistan ce of coun sel that were raise d in this appeal.
He expressed dissatisfaction with post-conviction counsel’s decision to abandon other issues, such as prosecutoria l
misconduct and concealment of exculpatory evidence, which he had included in the post-co nviction petition. He also
complained of counsel’s unwillingness to call the District Attorney General as a witness at the post-conviction hearing.
The de cision of which claims should be pursue d are ultimate ly one of strategy, w hich is a matter entrus ted to coun sel.
King v. State , 904 S.W.2d 319 , 334 (Tenn. 1999).

                                                               -7-
                The Sixth Amendment to the United States Constitution and Article I, section 9 of
the Tennessee Constitution both require that a defendant in a criminal case receive effective
assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
ineffective assistance of counsel, the standard applied by the courts of Tennessee is “whether the
advice given or the service rendered by the attorney is within the range of competence demanded by
attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).

               In Strickland v. Washington, the United States Supreme Court outlined the
requirements necessary to demonstrate a violation of the Sixth Amendment right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the
petitioner must show that counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms and must demonstrate that counsel made errors so serious that
he was not functioning as “counsel” guaranteed by the Constitution. Id. at 687, 104 S. Ct. at 2064.
Second, the petitioner must show that counsel’s performance prejudiced him and that errors were
so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).

                “When addressing an attorney’s performance it is not our function to ‘second guess’
tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s
representation by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629
S.W.2d, 4, 9 (Tenn. 1982). Rather, a court reviewing counsel’s performance should “eliminate the
distorting effects of hindsight . . . [and] evaluate the conduct from the perspective at the time.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed
or hurt the defense, does not, standing alone, establish unreasonable representation.” Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996). On the other hand, “deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.” Id.

                To establish prejudice, a party claiming ineffective assistance of counsel must prove
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694, 104 S. Ct. at 2068. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.” Id.

                               III. THE PETITIONER’S ISSUES.

A. Ineffective Assistance of Counsel - - Voir Dire of Jury.

                The petitioner claims that his trial counsel performed deficiently when he failed to
press the trial court to conduct individual voir dire of the prospective jurors. Implicitly, the
petitioner also claims that trial counsel failed to ask prospective jurors specific questions about their
exposure to pretrial publicity and thereby failed to ferret out possible juror biases.




                                                  -8-
                A trial court’s method of conducting jury voir dire in a criminal case must comport
with constitutional due process notions of fundamental fairness. See Mu’Min v. Virginia, 500 U.S.
415, 426, 111 S. Ct. 1899, 1905 (1991). However,
                [u]nder the constitutional standard . . . , “[t]he relevant question is not
                whether the community remembered the case, but whether the jurors
                . . . had such fixed opinions that they could not judge impartially the
                guilt of the defendant.”

Id. at 430, 111 S. Ct. at 1908 (quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 2891
(1984)). The law does not require that the jurors be “ignorant of the facts and issues involved.” Id.
“[J]urors may sit on a case, even if they have formed an opinion on the merits of the case, if they are
able to set that opinion aside and render a verdict based upon the evidence presented in court.” State
v. Mann, 959 S.W.2d 503, 531 (Tenn. 1997).

               With respect to the method of conducting voir dire, Tennessee courts have recognized
that “where the crime is highly publicized, the better procedure is to grant the defendant individual,
sequestered voir dire, but it is only where there is a ‘significant possibility’ that a juror has been
exposed to potentially prejudicial material that individual voir dire is mandated.” State v. Cazes, 875
S.W.2d 253, 262 (Tenn. 1994); see also State v. Smith, 993 S.W.2d 6, 29 (Tenn. 1999); State v.
Cauthern, 967 S.W.2d 726, 749 (Tenn. 1998); State v. Stephenson, 878 S.W.2d 530, 540 (Tenn.
1994).

                Concerning the content of voir dire questioning, “both the degree of exposure [to
potentially prejudicial information] and the prospective juror’s testimony as to his or her state of
mind shall be considered in determining [a juror’s] acceptability.” Tenn. R. Crim. P. 24(b)(2).
However, the presence of pretrial publicity does not mean that voir dire “questions regarding the
content of any publicity to which [prospective] jurors have been exposed” are constitutionally
required. Cazes, 875 S.W.2d at 262; see also Mu’Min, 500 U.S. at 431-32, 111 S. Ct. at 1908;
Stephenson, 878 S.W.2d at 540. Even under Rule 24,

               [i]f the prospective juror has seen or heard and remembers
               information that will be developed in the course of trial, or that may
               be inadmissible but is not so prejudicial as to create a substantial risk
               that his or her judgment will be affected, the prospective juror’s
               acceptability shall depend on whether the testimony as to impartiality
               is believed.

Tenn. R. Crim. P. 24(b)(2). Indeed, in light of the trial judge’s opportunity to hear and observe the
prospective jurors, courts have deferred to the trial judge to determine the ability of a prospective
juror to impartially hear the case. Mu’Min, 500 U.S. at 427, 111 S. Ct. at 1906.

               Accordingly, the acceptance of jurors in the face of “pretrial publicity and in other
areas of inquiry that might tend to show juror bias” is entrusted to the discretion of the trial court.


                                                 -9-
Id.; Cazes, 875 S.W.2d at 262. Given this deference, a “trial court’s findings of juror impartiality
may be overturned only for ‘manifest error.’” Cazes, 875 S.W.2d at 262; see also Cauthern, 967
S.W.2d at 749.

                In summary, individual, sequestered voir dire is not required unless the case is highly
publicized and there exists a significant possibility that prospective jurors have been exposed to
prejudicial information. Smith, 993 S.W.2d at 29; Cauthern, 967 S.W.2d at 749. Otherwise,
“prospective jurors who have been exposed to information which will be developed at trial are
acceptable, if the court believes their claims of impartiality.” Mann, 959 S.W.2d at 532.

                We have reviewed the transcript of the jury selection phase of the trial. Although
several prospective jurors indicated an awareness of the case as a result of local newspaper articles,4
the record reflects a benign interest in the case. Of those who had read or heard about the case, only
one indicated that he may have formed some opinion about the case, and this juror was excused via
peremptory challenge. One juror was excused after he expressed an opinion about the petitioner’s
guilt because a warrant had been issued, and as many as five potential jurors were excused by the
court when they indicated personal connections to witnesses or parties in the case. However, there
were no indications that strong feelings or opinions about the case had developed among the
prospective jurors or that the newspaper reports were sensational or provocative. Moreover, the
record does not reflect the amount, nature, extent, depth, specificity, or the prejudicial potential of
the pretrial media coverage of the case.

                In short, the record is devoid of any proof which supports a claim that counsel was
ineffective in failing to pose more probing questions to the jurors or in failing to ask the court for
individual, sequestered voir dire. Counsel cannot be said to have deficiently performed in not
seeking individual voir dire when neither the record at trial nor the post-conviction record illustrates
that the case was “highly publicized” or that any significant possibility of exposure to prejudicial
information existed.

               Furthermore, the record indicates no basis for the trial court to grant individual voir
dire and no basis on appeal for finding an abuse of discretion. Hence, the petitioner has
demonstrated no prejudice in the failure to move for individual voir dire. Also, the record reflects
no basis for concluding that the petitioner was prejudiced when counsel failed to ask more probing
questions about the prospective jurors’ pretrial information.

                Finally, we note that counsel’s concern that the responses to more probing questions
might have tainted the other prospective jurors is not itself a basis for the trial court ordering
individual voir dire. Without a showing of the predicate “significant possibility” of prejudicial
impact, the trial court was under no mandate to grant such a request.



        4
                  By our count, 24 prospective jurors had heard or read newspaper articles about the case, and seven
had heard or read nothing.

                                                       -10-
                   The petitioner has failed to establish ineffective assistance of counsel in these issues.

B. Ineffective Assistance of Counsel - - Character Evidence.

               The petitioner argues that trial counsel was ineffective because he failed to challenge
evidence which impugned the petitioner’s character by establishing the petitioner’s
previousincarceration in New York with Vito Licari,5 and the petitioner’s participation in arson and
check kiting. Additionally, the petitioner is aggrieved that trial counsel sponsored evidence of the
New York incarceration. He claims that the use of all of the above evidence was barred by
Tennessee Rules of Evidence 402, 403, and 404(b). He acknowledges that he may have been
vulnerable to witness impeachment via the use of the prior felony conviction of possession of stolen
property which resulted in the New York imprisonment, but he argues that the state-sponsored
character evidence was introduced before he decided to testify. Furthermore, the petitioner
complains that the state exploited the prejudicial nature of this evidence during its closing argument.

               Evidence that is not relevant is inadmissible. Tenn. R. Evid. 402. Otherwise
admissible relevant evidence may be inadmissible “if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.
Moreover, character evidence to prove “action in conformity with the character or trait on a
particular occasion” is generally inadmissible. Tenn. R. Evid. 404(a). More specifically,

                   [e]vidence of other crimes, wrongs, or acts is not admissible to prove
                   the character of a person in order to show action in conformity with
                   the character trait. It may, however, be admissible for other purposes.
                   The conditions which must be satisfied before allowing such evidence
                   are:
                           (1) The court upon request must hold a hearing outside the
                   jury’s presence;
                           (2) The court must determine that a material issue exists other
                   than conduct conforming with a character trait and must upon request
                   state on the record the material issue, the ruling, and the reasons for
                   admitting the evidence; and
                           (3) The court must exclude the evidence if its probative value
                   is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).




         5
                    The petitioner argued that the victim’s former status as a crime-family figure reflected negatively upon
him, although it is not clear whether this reflection stems from the fact that he and the victim both had southern European
surnames, o r whether it was b ecause the v ictim had be en married to the petitione r’s aunt.

                                                           -11-
               There is no question of fact about the content of the testimony of Licari and other
witnesses. The transcript of the trial testimony was exhibited to the post-conviction record.
Therefore, the trial court was not required to find facts regarding the content of trial testimony
concerning the petitioner’s incarceration and his alleged arson and check-kiting activities. Also, it
is not open to question that trial counsel did not make Rule 404(b) objections to the state’s
presentation of this evidence. Accordingly, our review of whether counsel was ineffective is de
novo. See State v. Burns, 6 S.W. 3d 453, 461, (Tenn. 1999).

                An analysis of the effectiveness of trial counsel in handling the character evidence
issues requires some understanding of the sequence and timing of the presentation of the character
evidence components. TBI Agents Thomas Lewis and Christopher Thomas Carpenter investigated
the homicide and testified early in the state’s case-in-chief. On direct examination, Agent Lewis read
to the jury the defendant’s unredacted pretrial statements which included information that the
victim’s real name was Piero Arthur Frapollo and the victim was a twenty-year member of the
Colombo crime family who left New York and came to Tennessee under the auspices of the federal
witness relocation program. On cross-examination of Agent Carpenter, defense counsel prompted
the witness to read an “agent’s note,” which is a memorandum an agent puts in his investigation file.
Along with information favorable to the petitioner, the agent’s note imparted to the jury information
that the petitioner had been previously incarcerated with Licari.

               Vito Licari testified immediately after Agent Carpenter. On the state’s direct
examination, Licari acknowledged his own criminal history but mentioned that he had been
incarcerated in New York with the petitioner and testified in some detail about the petitioner’s
involvement in arson and check kiting.

                In the petitioner’s case-in-chief, he presented evidence that Licari and the victim were
involved in the check-kiting scheme. The petitioner’s fiancée testified that the petitioner had been
incarcerated with Licari in New York. The petitioner testified that he had been incarcerated in New
York for ten months, that Licari was a cocaine user who carried the HIV virus, and that the victim,
alias Piero Arthur Frapollo, was relocated in Tennessee by the federal justice department. He denied
involvement in the arson and check-kiting activity.

               Additionally, the petitioner introduced evidence of examples of his good character
traits and showed that he worked and sought gainful employment, attended church, supported his
fiancée and her children, and served as Good Samaritan to Licari and the victim.

                                                  (1)

                Trial counsel’s strategy called for depicting the victim and Licari as unreformed
criminals, while depicting the petitioner as a responsible citizen and family man. Implementing the
strategy required showing the victim’s real name and that the victim was a criminal type who lived
in Tennessee under the federal witness protection program. Evidence of this nature was reasonably
promoted by the petitioner because the issue of the petitioner’s guilt rose or fell on the credibility


                                                 -12-
of witnesses. Counsel’s strategy fostered confidence in the petitioner’s credibility and disparaged
that of the victim and Licari. We discern no deficient performance in the tactical choice to use this
evidence.

                                                   (2)

                Also, we find no prejudice in the jury’s hearing evidence of the petitioner’s previous
incarceration in New York. The petitioner testified at his trial, and facing impeachment via the New
York conviction of possession of stolen property, he admitted the conviction on direct examination.
Although the conviction could only be used against the petitioner for impeachment purposes, see
Tenn. R. Evid. 609(a), the prejudicial impact of the evidence of the New York incarceration was
effectively diminished by the jury being informed of the conviction underlying the incarceration.
To be sure, the petitioner argues that he did not elect to testify until after the state presented the bad
character evidence, but we find nothing in the record which suggests that his decision to testify
emanated from anything other than his desire to controvert Licari’s accusations about the murder.
Thus, we see no prejudice to the petitioner as a result of the jury hearing about the New York
incarceration.

                                                   (3)

                The substantive use of the evidence of the petitioner’s alleged arson and check-kiting
activities, however, requires a more complex analysis. In the absence of a defense challenge on the
basis of Rules 402, 403, or 404, Licari, as a state witness, injected these two evidentiary components
into the case. First, we must determine whether the evidence was admissible via Licari.

                 The state argues that the arson and check-kiting evidence is justified by Tennessee
Rule of Evidence 404(b), because, rather than showing “action in conformity with [a] character
trait,” the evidence was admissible for “other purposes.” See Tenn. R. Evid. 404(b). In this case,
the state says the evidence of arson was admissible “to prove the source of the funds used to pay the
defendant and Vito Licari for killing the victim,” and the evidence of check-kiting “was admissible
to show the relationship between the parties.” We are unpersuaded that Rule 404(b)’s “other
purposes” exception would have provided a threshold for the admission of these two components
of proof, had counsel made proper objections. The only evidentiary importance of the fire insurance
money seems to be that the insurance company in fact paid proceeds which provided cash and
enabled a murder-for-hire scheme. That the murder had to be delayed so that the petitioner could
collect a debt owed him by the victim also may have been relevant. However, neither of these two
bases for proving the flow of insurance proceeds required disclosure of the petitioner’s alleged
participation in arson. Furthermore, we fail to see any relevance of the alleged check-kiting aspect
of the petitioner’s and the victim’s relationship to the state’s theory of the homicide. Thus, we hold




                                                  -13-
that the evidence of the petitioner’s alleged arson and check-kiting was inadmissible pursuant to
Rule 404(b), as of the time Licari testified.6

                The conclusion that trial counsel could have taken steps to effectively exclude or
limit the impact of inadmissible evidence does not end the inquiry into counsel’s performance. We
must consider whether counsel may be accredited for determining that the evidence, though
inadmissible at the time it was presented, could have facilitated the trial strategy, or if not, that
disclosure of the evidence was a necessary and justifiable risk of a worthy strategy. We reject out
of hand any notion that evidence of the petitioner’s alleged arson and check kiting per se advanced
counsel’s strategy. However, we must ascertain whether counsel deficiently performed by
acquiescing unreasonably or unnecessarily in the use of prejudicial evidence or whether the choice
of strategy made inevitable the disclosure of the accusations that the petitioner burned a house for
money and kited checks.

                 The inquiry into the inevitability of this evidence is initially informed by the law of
rebuttal and Tennessee Rules of Evidence 404 and 405. Competent evidence is generally admissible
to explain, directly reply to, or contradict material evidence introduced by the opposing party. Nease
v. State, 592 S.W.2d 327, 331 (Tenn. Crim. App. 1979). If counsel reasonably foresaw that the
implementation of his strategy would lead to the use of the arson and check-kiting accusations in
rebuttal, then a conscious decision not to challenge the evidence in the state’s case-in-chief may well
be a supportable tactic. Moreover, in such a scenario, a negligent failure to challenge the evidence
would have entailed no prejudice.

                The petitioner opened the door to his own character traits for industry, devotion to
his family, and general bonhomie. As explained above, he introduced evidence of specific instances
of his admirable traits. The claim that the petitioner was the victim’s benefactor was perhaps belied
by Licari’s testimony of the arson arrangement, and the petitioner’s claims that he was a wage-
earning family man would have been logically countered by the claim he was actively involved in
the arson and bank fraud. However, a logical connection to rebuttal evidence does not end the
inquiry when the rebuttal evidence would show specific instances of the bad character of the
defendant.

               To be sure, evidence of a “pertinent character trait” may be offered by a criminal
defendant or “by the prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1) (emphasis added).
However, the Rules limit the use of positive character evidence by the criminal defendant, or the
state’s use of negative evidence to rebut the same to reputation or opinion testimony via a
“character” witness. See Tenn. R. Evid. 404(a)(1), 405(b). Inquiry into “specific instances of
conduct” may be made only when cross-examing the character witness, and extrinsic evidence of

         6
                   A proper, timely objection should have resulted in the evidence being excluded. We realize, however,
that the testimony im plicating the p etitioner in arso n and chec k kiting was a surprise to trial counsel, and some of the
accusations were injected before couns el had an o pportunity to object an d seek exc lusion. Nev ertheless, a mo tion to
strike and to ask the court to give cautionary, limiting instructions to the jury should hav e been we ll received. A lso, a
motion for th e ordering of a mistrial wou ld have be en on po int.

                                                           -14-
specific instances of the defendant’s misconduct is not permitted. N. Cohen, Tennessee Law of
Evidence § 405.3, at 196 (3d ed. 1995). In a broad sense, some of the defense witnesses at trial may
be viewed as character witnesses to the extent that they affirmed the petitioner’s traits of industry
and benevolence, and they were subject to cross-examination about their knowledge of the arson-for-
hire and the check-kiting claims.7 However, extrinsic evidence of these claims would not have been
admissible in rebuttal. If counsel assumed otherwise, he was in error.

                 That said, our inquiry into the adequacy of counsel’s performance does not end here.
In applying the mandated objection standard to evaluate counsel’s performance, we must consider
the benefits to the defense of a tactic of acquiescing in the use of incompetent state proof as a means
of enabling the defense to rebut with favorable, but equally incompetent proof.

                 Tennessee has long recognized a “good-for-the-goose, good-for-the-gander” rule that
“if a party opens the door for the admission of incompetent evidence, he is in no plight to complain
that his adversary followed through the door thus opened; and this, although no objection was made
in the first instance to the admission of such evidence.” Thomas v. State, 121 Tenn. 83, 87, 113
S.W. 1041, 1042, (1908); see also Garrison v. State, 163 Tenn. 108, 121, 40 S.W.2d 1009, 1013
(1931). As we have shown above, the state presented inadmissible evidence through Licari, without
objection, that the petitioner burned a house and defrauded banks. Then, the petitioner in his case-in-
chief offered witnesses to testify to specific instances of the petitioner’s good conduct, evidence
which was itself inadmissible. See Tenn. R. Evid. 405(a). Even though the state generally made no
objection to the petitioner’s improper method of placing his character in issue, the petitioner was in
a position because of the Thomas rule to use his favorable specific-instance evidence, when
otherwise his attempts to show his good character would have been limited to opinion or reputation
evidence. Id. Through this device, the petitioner presented evidence of his reform from crime by
showing specific examples of his work ethic, family values, and beneficent nature. Undoubtedly,
the good conduct evidence promoted the petitioner’s strategy and, for all we know, may have given
him his best chance for acquittal. To be sure, the strategy, as played out through the tactics of trial
counsel, had the potential for gain as well as loss. See Profit v. Waldron, 831 F. 2d 1245, 1249 (5th
Cir. 1987). For this reason, we defer to both counsel’s choices of strategy and the tactics he
employed to implement the strategy. As a result, we hold that counsel did not deficiently perform
with respect to the arson and check kiting evidentiary issues.




         7
                   In fact, the state took the opportunity to cross-examine these defense witnesses on these issues . The
witnesses den ied knowle dge of the p etitioner’s involv ement in arso n or check -kiting.

                    W e discern that the petitioner could have been impeached as a witness through cross-examination about
activities to defraud banks and an insura nce com pany, pursuant to the impeachment through prior bad acts provisions
of Tennessee Rule of Evidence 608(b). In fact, he was cross-examined about these issues. However, he denied
involvement in the arson and check-kiting, and the state should have been relegated to “taking his answer.” T he state
would not have been permitted to present extrinsic proof of the prior bad acts, as it would have been permitted to do in
the case of im peachm ent through p rior convic tions. Compare Tenn. R. Evid. 608(b) with Tenn. R Evid. 609(a)(1).

                                                          -15-
              Our inquiry, mercifully, is now at an end. Having found no deficiency in counsel’s
performance, we need not address the prejudicial effect of the defense strategy or tactics. Henley,
960 S.W.2d at 580.

                                      IV. CONCLUSION.

                 Accordingly, we conclude that the petitioner failed to show by clear and convincing
evidence that he received the ineffective assistance of trial counsel, and we affirm the judgment of
the trial court.

                                                      ________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




                                               -16-
