 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Burns11/8/1999
ficient performance. See Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997).
In this case, counsel knew prior to trial that he faced testimony from a disreputable accomplice who would implicate his client as the instigator of the murder of her ex-husband. Although his client denied any involvement in her husband's murder, the accomplice stood to gain little by his testimony against her. On the other hand, counsel also had available a TBI memorandum containing information concerning a wholly separate plot to kill Burns. Included in this report were the names of two witnesses, Blankenship and Decker. If these witnesses had substantiated the existence of a separate conspiracy to kill Burns, the defense could have offered the jury an alternative theory about how Burns was killed. This Court cannot fathom why counsel chose to ignore this avenue of defense. At a minimum, the failure to investigate this possibility constitutes a deficiency in counsel's representation.
Nevertheless, " n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. An error must be prejudicial to the defense before reversal on this basis will be warranted. See id. at 692. The test for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Simply put, the error must be of a degree that deprives the defendant of a fair trial and calls into question the reliability of the outcome. A reasonable probability of being found guilty of a lesser charge satisfies the prejudice prong of Strickland. See Hicks, 983 S.W.2d at 246; State v. Zimmerman, 823 S.W.2d 220, 227 (Tenn. Crim. App. 1991).
The testimony of Blankenship and affidavits from both Blankenship and Decker were introduced at the hearing on the Motion for New Trial. The information gleaned from their testimony indicated that Spadafina and Frappolo openly discussed plans to kill Burns and were observed on several occasions making verbal threats and physical assaults against him. Evidence also showed that the two women approached law enforcement officials about threats on Burns's life prior to the actual murder, lending credibility to their later testimony about such threats.
We agree with our esteemed colleagues on the Court of Criminal Appeals that Licari, the State's primary witness, acted with questionable motives and repute. Furthermore, the corroborating evidence, consisting solely of testimony that the defendant negotiated a check made out to Burns and possessed her son's savings passbook, was scant. Given the minimal corroborating evidence, we believe a reasonable possibility exists that admission of the evidence of an alternative plot by Spadafina and Frappolo to kill Burns would have raised a reasonable doubt in the jurors' minds as to the defendant's involvement in the scheme. The defendant's conviction is therefore reversed, and the case remanded to the trial court for a new trial.
LESSER-INCLUDED OFFENSE INSTRUCTIONS
Although the issue of ineffective assistance of counsel is dispositive, we choose also to discuss the trial court's failure to charge the lesser offenses of facilitation of a felony (first-degree murder) and solicitation of first-degree murder to provide guidance in the event of a retrial. The defendant argues that, because she was charged with criminal responsibility for commission of an offense, facilitation was necessarily a lesser-included offense that
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|