         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 5, 2002 Session

         MICHAEL JOSEPH SPADAFINA v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Benton County
                            No. CR451     Julian P. Guinn, Judge



                  No. W2001-02554-CCA-R3-CD - Filed December 20, 2002


The petitioner appeals from the denial of his writ of error coram nobis. In this appeal, he argues his
first degree murder conviction should be set aside because his co-defendant, who testified against
the petitioner at trial, recanted his testimony prior to the co-defendant’s death. Following a hearing,
the trial court denied the petition. We affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY , J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Michael Joseph Spadafina.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Beth C. Boswell, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

         In 1995, the petitioner was convicted of first degree murder and sentenced to life
imprisonment. This court affirmed his conviction. See State v. Spadafina, 952 S.W.2d 444 (Tenn.
Crim. App. 1996), perm. to app. denied (Tenn. 1997). The petitioner then filed a petition for post-
conviction relief, which was denied; the denial was affirmed on appeal. See Spadafina v. State, 77
S.W.3d 198 (Tenn. Crim. App. 2000). On May 16, 2001, the petitioner filed a “Motion for New
Trial” alleging there was newly discovered evidence showing Vito Licari, a co-defendant who
testified against the petitioner, had recanted his trial testimony. The trial court treated the motion
as a writ of error coram nobis. Following an evidentiary hearing, the trial court found no grounds
for relief and denied the petitioner’s motion.
                            I. FACTS PRESENTED TO THE JURY

       The following facts are set out in this court’s opinion on the direct appeal of the petitioner’s
conviction:

                       On December 15, 1994, a child looking out his school bus
               window discovered a body lying atop an embankment along Mt.
               Carmel Road in Benton County. Police and medical personnel
               arrived shortly thereafter and found a man lying face down with his
               arms stretched above his head. His neck had been almost completely
               severed. A hotel key to a room at Wismer Motel was the only item
               in the victim’s pockets.

                       Benton County Sheriff Bobby Shannon and another officer
               went to the motel and spoke to Brenda Burns who identified the key
               as belonging to her ex-husband, Paul Burns. Ms. Burns gave the
               officers a description of her ex-husband, and from the description, the
               officers determined that the unidentified body was likely Paul Burns.
               Ms. Burns told the officers that she had last seen the victim with the
               defendant and Vito Licari.

                      Shortly thereafter, the sheriff’s office picked up Licari who
               was walking along Mt. Carmel Road carrying a large suitcase. When
               questioned about the defendant’s whereabouts, Licari told officers
               that the defendant was taking an employment test in nearby
               Humphreys County. The defendant was located and taken into
               custody a few hours later. Both Licari and the defendant were then
               questioned about the death of the victim.

                        In his first statement to the police, Licari denied knowing
               anything about the murder. In the defendant’s first statement to the
               police, he said that he, Licari and the victim had been in the victim’s
               motel room when Licari began asking the victim for money. He
               further stated that Licari had then suggested that he (Licari) and the
               victim take a ride and that the two then left while the defendant had
               stayed in the room. According to the defendant, Licari returned alone
               a short time later and refused to say what had happened to the victim.

                       Upon obtaining the defendant’s initial statement, the officers
               placed him in the same room as Licari and asked the defendant to
               repeat his version of the events. After doing so, both the defendant
               and Licari asked to make new statements. The two were then
               separated and Licari then claimed that he and the defendant together
               had murdered the victim. The defendant’s new statement was that he
               had been in the car at the time the victim was killed but that he had

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known nothing about Licari’s intention to kill the victim nor had he
aided Licari in doing so.

         The grand jury subsequently indicted the defendant and Licari
for first-degree murder. Licari pled guilty to first-degree murder in
exchange for the State’s agreement to a sentence of life
imprisonment.

        At trial, the defendant testified that he and the victim had
known each other for some years while the two lived in New York.
The victim, upon being relocated under the Federal Witness
Protection Program, asked the defendant to join him in Tennessee.
The defendant, his girlfriend, and her children moved to Tennessee
in the summer of 1994, and in August, the victim began living with
them. In October, after being invited by the defendant, Licari left
New York and moved in with the defendant and the others. Licari
and the defendant had met while incarcerated in the New York state
penitentiary.

        Licari testified that some time in December he and the
defendant had met with Brenda Burns to discuss killing the victim,
Ms. Burns’ ex-husband. Licari alleged that Ms. Burns had hated the
victim and did not want to pay him fifty thousand dollars ($50,000)
she owed him as a result of their divorce settlement. According to
Licari, Ms. Burns had offered to pay Licari and the defendant a total
of ten thousand dollars ($10,000) if they would kill the victim. The
plan was that Ms. Burns make an initial payment prior to the killing
and then follow with an installment payment of eight hundred dollars
($800) per month. Licari testified that he and the defendant had
agreed to murder the victim but that the defendant had wanted to
collect some money owed him by the victim before committing the
murder.

        Licari testified that in the fall of 1994, the defendant had
intentionally set fire to the victim’s house so that the victim could
collect the insurance proceeds. In exchange for committing the
arson, the defendant was to receive five thousand dollars ($5,000)
from the victim. According to Licari, the defendant had received a
portion of the money but that the victim still owed him about two
thousand three hundred dollars ($2,300).

        Licari testified that on the day of the murder, he had driven
the victim to Henry County to appear in court on charges stemming
from a “check kiting” scheme in which Licari said he, the defendant
and the victim were involved. While he and the victim were in court,

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the defendant and Ms. Burns had picked up three insurance checks
that were issued to the victim as a result of the fire. Licari testified
that the three men had met back in the victim’s motel room where the
defendant had given the victim two of the three checks. Licari
testified that the defendant had told the victim that the third check,
which was for five thousand dollars ($5,000), would have to be
picked up the next day. Actually, the defendant and Ms. Burns
already had possession of the third check.

        From the two checks, the victim paid the defendant the
balance owed for the alleged arson. As for the third check, Licari
said the defendant and Ms. Burns had forged the victim’s signature
and cashed it. From this five thousand dollars ($5,000), Ms. Burns
paid the defendant one thousand five hundred dollars ($1,500) to be
shared with Licari as a downpayment on the murder. Licari received
his share later that same day. At that point, Licari testified that the
defendant had decided they must kill the victim that night because if
they did not, he would start asking about the third check. Licari and
the defendant decided to kill the victim while they were all in the
defendant’s car after the defendant gave the signal, “Now would be
a good time.”

        On the night of the murder, the three men had dinner together,
dropped some food off at the defendant’s house, and then drove down
Mt. Carmel Road in the defendant’s station wagon. When the
defendant gave the signal, Licari, who was in the backseat, reached
around the passenger seat and tried to choke the victim with a
clothesline. Licari testified that when he had begun this attempt, the
defendant pulled the car off the side of the road. Licari was
unsuccessful at his attempt to choke the victim because the
clothesline was in the victim’s mouth rather than around his neck.
According to Licari, the defendant got out of the car, came around to
the driver’s side, and slashed the victim’s throat two or three times
with a knife. Licari further testified that he and the defendant had
then dragged the victim’s body to the top of an embankment and left
it there. The pair then went to a nearby carwash and sprayed the
inside of the car with water in an effort to remove the blood. They
also washed the blood from their shoes and from the knife. Licari
then tossed the knife behind the carwash. According to Licari, the
two had then returned to Wismer Motel where Ms. Burns washed
their clothes.

       Licari and the defendant then returned to the defendant’s
house where Licari told the defendant’s girlfriend that a “problem”
had been eliminated. Licari did not say that the victim had been

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murdered, but he did tell the girlfriend that the defendant had not
been involved in eliminating the so-called problem.

        On December 15, 1994, Licari and the defendant went to
Henry County for another of the victim’s scheduled court dates.
When the victim’s attorney questioned them as to the victim’s
whereabouts, the defendant said he did not know where the victim
was and indicated that the victim may have run. Later that same day,
Licari and the defendant were separately picked up for questioning
and were subsequently charged with the murder of Paul Burns.

         The defendant’s version of the events is quite different. At
trial, he testified that on the day of the murder he and Ms. Burns had
picked up the insurance checks but that they had done so with the
victim’s permission. He further testified that he had given all three
checks to the victim and had then taken the victim to the bank so that
the victim could pay some outstanding debt. The defendant testified
that the victim had given him two thousand two hundred dollars
($2,200) to go toward a downpayment on the defendant’s house, not
as pay for an arson job as Licari had testified earlier. As for the third
check, the defendant testified that the victim had asked Ms. Burns to
sign his name to the check and then had asked that Ms. Burns and the
defendant pay three thousand five hundred dollars ($3,500) of the
five thousand dollar ($5,000) check on some other bank notes. The
pair did as they were asked and then returned to the hotel with the
remaining one thousand five hundred dollars ($1,500). The
defendant testified that the victim had then given that money to Ms.
Burns.

         According to the defendant, he, the victim and Licari were
later that evening riding in the defendant’s car on Mt. Carmel Road.
The defendant testified that he had suddenly heard the victim gagging
in the seat next to him, and when he turned, he saw Licari choking
the victim with a piece of cord. The defendant claimed that he tried
to reach for the cord and as a result, ran his car off the side of the
road. The defendant testified that Licari had then threatened him with
a knife and demanded that he stop the car. He further testified that
he stopped the car, got out, and began to leave the scene when Licari
ordered that he return. When the defendant did so, he saw the victim
fall out of the car. The defendant testified that Licari had threatened
to kill him if he left and that Licari then pulled the victim’s body to
the top of the embankment.

      The defendant testified that he and Licari had gone to the
carwash and that they had returned to the Wismer Motel that night,

                                  -5-
                but claimed that they had not seen Ms. Burns. He further testified
                that he and Licari had returned to their home and spent the night
                despite the fact that Licari had continued to make threats to kill the
                defendant. Over the next few days, the defendant testified that Licari
                had always been by his side. He further testified that he had been in
                fear for his and his family’s safety and that because of this fear he
                had been unable to tell the police that Licari had killed the victim.

Spadafina, 952 S.W.2d at 447-49.


                                     II. PROOF AT HEARING

        At the hearing, the petitioner presented the testimony of James Bennett, a correctional
officer, who testified he had served as Vito Licari’s prison counselor. Bennett stated Licari, who
suffered from AIDS, stopped taking his medication and, as a result, died approximately six months
later. According to Bennett, after Licari stopped taking his medication, he approached Bennett, told
Bennett he wanted to “clear the record,” and recounted the murder of Paul Burns. Bennett said
Licari told him he had cut the victim’s throat, and the petitioner had no idea the murder was going
to occur. Bennett testified Licari stated the petitioner helped him dispose of the body. Bennett
stated Licari indicated he had been untruthful in his statements to law enforcement and in his
testimony at trial. Bennett said he reported this information to his supervisor and the warden.


         Bennett indicated the conversation with Licari occurred on or about March 4, 1999. Bennett
testified he later met the petitioner and, in approximately August or September 2000, apprised him
of his prior conversation with Licari. The petitioner was unaware of this conversation prior to being
told by Bennett.

         Terry Leonard, the attorney who represented the petitioner during trial, testified that after
the trial, he learned of a letter purportedly written by Licari to the petitioner in which Licari admitted
he lied during the trial. Leonard stated he visited Licari in prison and showed him a copy of the
letter. According to Leonard, Licari responded with laughter and denied writing the letter. Leonard
acknowledged he presented the testimony of three witnesses at trial who testified Licari said the
petitioner had nothing to do with the murder.

        The judge, who presided at petitioner’s trial and at the hearing, questioned whether Licari,
had he been alive, would have testified in accordance with the statements he made to James Bennett.
The trial court also stated on the record that the petitioner’s own testimony at trial was far more
damaging to the petitioner than Licari’s testimony. Finding no basis for relief, the trial court denied
the petitioner’s motion.


                            III. WRIT OF ERROR CORAM NOBIS


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         Trial courts may grant a criminal defendant a new trial following a judgment of conviction
under limited circumstances through the extraordinary remedy offered by a writ of error coram
nobis. Tenn. Code Ann. § 40-26-105.; State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A writ
of error coram nobis may be granted where the defendant establishes the existence of newly
discovered evidence relating to matters litigated at trial if the defendant shows he was without fault
in failing to present the evidence at the proper time, and if the judge determines the evidence may
have resulted in a different judgment had it been presented to the jury. Tenn. Code Ann. § 40-26-
105; Mixon, 983 S.W.2d at 668.

A. Statute of Limitations

         A writ of error coram nobis must be filed within one year after the judgment becomes final
in the trial court, which is thirty days after judgment is entered or, if a post-trial motion is filed, upon
entry of an order disposing of the post-trial motion. Tenn. Code Ann. § 27-7-103; Mixon, 983
S.W.2d at 670.

         In the instant case, there is no question that petitioner’s motion, filed approximately five
years after judgment was final in the trial court, was clearly outside the statute of limitations.
However, our state’s appellate courts have held due process may require that the statute of
limitations for filing a petition for writ of error coram nobis be tolled. See Workman v. State, 41
S.W.3d 100, 103 (Tenn. 2001) (holding due process required tolling of the statute of limitations
where “Workman’s interest in obtaining a hearing to present newly discovered evidence that may
establish actual innocence of a capital offense far outweighs any governmental interest in preventing
the litigation of stale claims”); State v. Ratliff, 71 S.W.3d 291, 298 (Tenn. Crim. App. 2001)
(holding due process required tolling of the statute of limitations where the petition was filed
fourteen days late and the “great weight of the evidence against [the petitioner]” came from the
victim, who recanted her testimony). While we question whether due process requires the statute
of limitations be tolled for five years in the instant case, we note the state did not raise the statute
of limitations as a defense in the trial court. Further, the trial court conducted an evidentiary
hearing on the petitioner’s motion. Because our review of the record brings us to the determination
that the trial court did not err in dismissing the petitioner’s claim for relief on the merits, we will not
base our disposition on the statute of limitations.


B. Writ of Error Coram Nobis for Recantation

        A witness’s recantation of his prior trial testimony may be newly discovered evidence.
Mixon, 983 S.W.2d at 672. Before granting a new trial on the basis of newly discovered recanted
testimony, the trial court must find: (1) it is reasonably well satisfied that the testimony given by the
material witness was false and the new testimony is true; (2) the defendant was reasonably diligent
in discovering the new evidence, or was surprised by the false testimony, or was unable to know of
the falsity of the testimony until after the trial; and (3) the jury might have reached a different
conclusion had the truth been told. Ratliff, 71 S.W.3d at 298 (citing Mixon, 983 S.W.2d at 673
n.17).


                                                    -7-
       It lies within the sound discretion of the trial court to grant or deny a petition for writ of error
coram nobis based upon newly discovered evidence. State v. Hart, 911 S.W.2d 371, 375 (Tenn.
Crim. App. 1995). This court will not overturn the trial court’s decision to deny a writ of error
coram nobis absent a showing that the trial court abused its discretion.

         Given that Vito Licari is now deceased, this case does not involve the usual scenario in
which a prosecution witness recants his or her trial testimony. Instead of being able to present the
witness’s recanted testimony, the petitioner was forced to present the testimony of James Bennett,
to whom Licari made his alleged recantation. Nevertheless, we conclude that before the trial court
could have granted the petitioner’s request for coram nobis relief, it : (1) must have been reasonably
satisfied that Vito Licari’s testimony at trial was false and his “recantation” to James Bennett was
true; (2) found the petitioner was reasonably diligent in discovering the new evidence, or was
surprised by the false testimony, or was unable to know of the falsity of the testimony until after the
trial; and (3) found the jury might have reached a different conclusion had the truth been told. See
Ratliff, 71 S.W.3d at 298.

        First, the trial court implicitly found Licari’s statements to Bennett lacked credibility. The
facts presented at trial indicate Licari made inconsistent statements about the murder to law
enforcement. See Spadafina, 952 S.W.2d at 447. Trial counsel Terry Leonard testified at the
hearing that he presented the testimony of three witnesses who said Licari made statements which
were inconsistent with his trial testimony. Leonard further testified that when he confronted Licari
with the letter in which Licari purportedly admitted lying at trial, Licari laughed and denied making
any such admission.

          Second, the proof supports the trial court’s conclusion that the statements made by Licari to
Bennett would have had no impact on the outcome of the trial. The judge who presided at the
hearing was present during the trial. He had the unique opportunity to view the evidence presented
to the jury, which included the testimony of Licari and the petitioner, and evaluate whether the
evidence presented at the hearing would have made a difference. We yield to the trial court’s
observation that it was the petitioner’s own testimony at trial which left the jury “aghast” and
weighed more heavily against him than the testimony of Licari. We also note that three witnesses
at trial indeed testified that Licari previously said the petitioner had nothing to do with the murder.

        The trial court was justified in denying relief for these reasons.


                              III. ADMISSIBILITY OF EVIDENCE

       Further, we note the evidence of Vito Licari’s recantation of his trial testimony was, by
necessity, presented through the testimony of James Bennett. Clearly, Bennett’s testimony
regarding Licari’s statements was hearsay. See Tenn. R. Evid. 801(c). Therefore, before Bennett’s
testimony could be presented at a new trial, it must be found admissible under a hearsay exception.
See Tenn. R. Evid. 802. Although the petitioner argues Licari’s statements to Bennett qualify as a
dying declaration, we would note that this exception to the hearsay rule applies only to statements
made by a homicide victim who believes his death is imminent and that concern the cause or

                                                   -8-
circumstances of his impending death. Tenn. R. Evid. 804(b)(2). Therefore, Licari’s statements do
not meet the dying declaration exception to the hearsay rule.

        The petitioner argues that the evidence qualifies as a statement against Licari’s interest
because it was an admission of perjury. See Tenn. R. Evid. 804(b)(3). However, it is questionable
that a person with a terminal illness serving a life sentence would fear his alleged recantation could
lead to significant criminal liability so as to qualify under this hearsay exception.

       We conclude, under the circumstances of this case, the newly discovered evidence would
not have been admissible at a new trial. Thus, it could not give rise to coram nobis relief.


                                      CONCLUSION

        Accordingly, we must conclude the trial court did not abuse its discretion in denying the
petitioner’s writ of error coram nobis. We affirm the judgment of the trial court.



                                                       ____________________________________
                                                       JOE G. RILEY, JUDGE




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