           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


                                          -2-
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

                                         -3-
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




                                       -4-
       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.

                                           -5-
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

                                         -6-
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

                                           -7-
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

                                           -8-
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

                                          -9-
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

                                         -10-
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.




                                         -11-
       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’

                                           -12-
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

                                         -13-
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

                                           -14-
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

                                         -15-
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

                                          -16-
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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