State v. Brenda Burns

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1996

STATE OF TENNESSEE, ) FILED C.C.A. NO. 02C01-9605-CC-00184 ) October 9, 1997 Appellee, ) ) Cecil Crowson, Jr. ) HENRY COUNTY Appellate C ourt Clerk VS. ) ) HON. JULIAN P. GUINN BRENDA ANNE BURNS, ) JUDGE ) Appellant. ) (Direct Appeal)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID L. RAYBIN JOHN KNOX WALKUP Hollins, Wagster & Yarbrough, P.C. Attorney General and Reporter 2210 SunTrust Center 424 Church Street WILLIAM DAVID BRIDGERS Nashville, TN 37219 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

ROBERT RADFORD District Attorney General P. O. Box 686 Huntingdon, TN 38344

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE

OPINION On October 19, 1995, a Henry County Circuit Court jury found Appellant

Brenda Anne Burns guilty of first-degree murder. Appellant received a sentence of life imprisonment. On appeal, Appellant raises the following issues for review:

1) Whether the evidence is sufficient, as a matte r of law, to support her c onviction for first-degree m urder; 2) Wh ether the trial court erred by failing to instruct the jury on facilitation to commit first-degree murder and solicitation of first- degree m urder; 3) Whether the trial court erred by proh ibiting A ppella nt’s attorney from fully cross-examining a State’s witness; 4) Whether the trial court erred in denying Appellant’s motion for a new trial based on newly discovered eviden ce or ineffective assistance of counsel; and 5) Whether the cum ulative e ffect of tria l errors depriv ed Ap pellant of a fair tria l.

After a painstaking review of the record, we have concluded that Appellant was denied the effective assistance of counsel and that this case must be revers ed an d rem ande d for a n ew trial.

Factual Background

On December 15, 1994, the Benton County Sheriff’s Department found the body of Paul Burns, Appellant’s ex-husband, in the woods beside Mount Carmel Road near Camden, Tennessee. The evidence submitted at trial and accredited by the jury verdict revealed that Michael Spadafina and Vito Licari m urdered M r. Burns at the request of Appellant and in exchange for $10,000.

At the tim e of the murd er, Ap pellant and Bu rns were d ivorced. B urns, a member of the Columbo organized crime family, was living in Camden as part of the federal witness protection program. Burns was approximately sixty-two years

-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

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Appe llant first alleg es tha t the evid ence prese nted a t trial is leg ally insufficient to sus tain he r convic tion for firs t-degr ee m urder . Spec ifically, she claims that there is no evidence, independent of the testimony of Licari, who was an accomplice as a matter of law, to corroborate Licari’s testimony. When an appeal challe nges the su fficienc y of the e videnc e, the s tanda rd of rev iew is whether, after viewing the evidence in the light most favora ble to the State, any rational trier of fact could have found the essential elements of the crime beyond a reason able do ubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v. Evans, 838 S.W.2 d 185, 1 90-91 (T enn. 19 92), cert. denied, 114 S. Ct. 740 (1994); Tenn . R. App . P. 13(e). On a ppea l, the State is entitled to the strongest legitimate view of th e evide nce a nd all reason able or leg itimate inferences which may be drawn therefrom . State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8). This Court w ill not reweigh the evide nce, re-e valuate th e eviden ce, or sub stitute its evidentiary inferences for those reached by the jury. State v. Grace, 493 S.W.2d 474, 476 (T enn. 1973 ). As the Supre me Co urt of Tennessee said in Bolin v. Sta te:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear th eir testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witness es. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in th is Court.

405 S.W .2d 768 (1966). T hus, a jury v erdict is en titled to grea t weight.

Once approved b y the trial court, a jury verdict accredits the witnesses presented by the State and resolves all conflicts in favo r of the Sta te. State v.

-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.

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The propriety, scope, manner, and control of the examination of witnesses is a matte r within the s ound d iscretion o f the trial judge . State v. Meeks, 876 S.W.2d 121, 128 (T enn. Crim. A pp. 1993). Such discre tion will not be interfered with abse nt a show ing of abu se.

Appellant emphasizes in her brief that Licari’s le tters we re adm issible under Tennessee Rule of Evidence 608 for the purpose of attacking Licari’s credibility. How ever, R ule 60 8(b) sta tes tha t extrins ic evidence may not be used to prove sp ecific acts. A ppellant a lso argue s that the letters are admis sible to prove prejud ice or b ias. Te nnes see R ule of Evidence 616 permits impeachment with extrinsic evidenc e to dem onstrate a witness ’ bias or pre judice. Thus, these threatening letters w ere ad miss ible to attack Licari’s credibility. Although Licari had been impeached through his criminal record and his admitted desire for revenge, the letters express Licari’s ange r, ill motive , and vic iousn ess in g raphic terms. Given the closeness of this case and the overwhelming importance of Licari’s testim ony to th e pros ecutio n’s cas e, we b elieve th e exclu sion of the letters constitutes error. Upon retrial of this cause Appellant should be allowed greate r leewa y in the u se of th ese le tters to c ross-e xamin e Lica ri. IV. New ly Discove red Evid ence a nd Ine ffective Ass istance of Cou nsel.

In her fourth issue, Appellant contends that information contained in two affidavits entitle her to a new trial either because it constitutes newly discovered evidence or, in the alterna tive, her trial cou nsel w as co nstitutio nally defec tive in failing to pursue the information. The first affidavit contains a statement taken from a woman named Ruby Blankenship. In her statement and at the hearing on Appe llant’s motion for new trial, she stated that she worked for Burns and Burns’

-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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