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State v. Burns11/8/1999
Defendant/appellee Brenda Burns was tried and convicted of criminal responsibility for the commission of first-degree murder in the death of her ex-husband, Paul Burns. The Court of Criminal Appeals reversed the conviction on the basis that trial counsel was ineffective in failing to interview two potential defense witnesses and present the testimony of those witnesses before the jury. The State filed an Application for Permission to Appeal contesting the intermediate court's reversal of the defendant's conviction on that basis. The defendant filed a Cross-Application for Permission to Appeal raising, among other issues, whether the trial court had committed reversible error by failing to instruct the jury on the lesser-included offenses of facilitation of a felony (i.e., first-degree murder), Tenn. Code Ann. § 39-11-403 (1991), and solicitation to commit a criminal offense (i.e., first-degree murder), Tenn. Code Ann. § 39-12-102 (1991). We granted both Applications in order to address these important issues.
After thoroughly reviewing the facts and law relevant to these issues, we agree that trial counsel's failure to interview the defense witnesses in question and to present their testimony at trial resulted in ineffective representation under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). Furthermore, we find that the trial court's failure to instruct the lesser-included offense of solicitation to commit a criminal offense was error.
FACTS
Paul Burns and the defendant, Brenda Burns, met in Nashville and were married on March 23, 1983. Subsequently, Burns told the defendant that he was formerly a member of the Colombo crime family of New York City and had moved to Tennessee under the federal witness protection program. Later, after the defendant became pregnant, she discovered that Burns had previously been married and had children from that marriage. The couple moved to Donelson, Tennessee, where their son Michael was born. Six months after Michael was born, Burns had a stroke and was no longer able to work.
Shortly thereafter, in 1987, the Burns moved to Camden, Tennessee, where they purchased the Wismer Motel from the defendant's parents and began running it as their source of income. In 1991, the Burns began having marital problems and separated for a while. They reconciled temporarily but were ultimately divorced on August 12, 1994. Pursuant to a marital dissolution agreement, the defendant received the motel, subject to payment of $50,000 to Burns for his share of the equity in the property.
In the spring of 1994, Burns briefly returned to New York City and invited Michael Spadafina, a nephew by his former marriage, to come to Tennessee. Spadafina accepted Burns's offer and moved to Tennessee with his girlfriend, Audrey Coppola, and her two children. For a period of time, Spadafina, Coppola, and Burns lived together near Camden. Spadafina acted as Burns's caretaker, helping with personal and business affairs that Burns could not handle on his own due to the physical limitations resulting from his stroke.
In August 1994, Burns purchased a house and moved out on his own. Nonetheless, Spadafina continued to assist Burns with his personal and business affairs. Furthermore, the two began engaging in a check-kiting scheme, supplementing their income from the ill-gotten gains of that scheme. On October 5, 1994, Burns's house burned down, and he moved back in with Spadafina and Coppola for a time.
In late October 1994, Spadafina and Coppola returned briefly to New York. While there, Spadafina and Coppola invited Vito Licari to move to Ten
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