State v Burns
| Decision Date | 08 November 1999 |
| Docket Number | 96-00004 |
| Citation | 6 S.W.3d 453 |
| Parties | STATE OF TENNESSEE, Appellant v. BRENDA ANNE BURNS, AppelleeIN THE SUPREME COURT OF TENNESSEE AT JACKSON FILED: |
| Court | Tennessee Supreme Court |
For the Appellant:
Andrew Frazier, Camden, Tennessee
(At Trial)
David Raybin, Nashville, Tennessee
(On Appeal)
For the Appellee:
Paul G. Summers, Attorney General and Reporter
Michael C. Moore,Solicitor General
Elizabeth T. Ryan, Assistant Attorney General, Nashville, Tennessee
Robert Radford, District Attorney General
FOR PUBLICATION
AFFIRMED AS MODIFIED
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.1 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.
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,2 supplementing their income from the ill-gotten gains of that scheme. On October 5, 1994, Burns's house burned down,3 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 Tennessee. Spadafina and Licari became friends in 1990 when they were serving time in a medium security penitentiary in New York. Licari accepted the offer and moved in with Spadafina, Coppola, and Burns. Shortly thereafter, Burns moved into a room at the Wismer Motel, and Spadafina, Coppola and Licari moved to another house.
Licari soon joined Spadafina and Burns's check-kiting scheme and began sharing in the profits. That scheme ultimately unraveled when warrants were issued for Burns's arrest, charging him with a series of worthless check offenses. On the morning of Tuesday, December 13, 1994, Licari accompanied Burns to Henry County General Sessions Court for a preliminary appearance on one of the worthless check charges.
Meanwhile, ostensibly acting on Burns's behalf, Spadafina delivered to James Orman, an insurance adjuster, an executed and notarized proof of loss form, and collected three settlement checks relating to the fire loss claim on Burns's house. One check was issued in the amount of $20,000, reflecting the amount of insurance coverage originally purchased on the home; one was in the amount of $4,750, reflecting the increased coverage obtained by Burns shortly before the fire; and one was in the amount of $5,000, reflecting the amount of coverage for the contents of the home.
Later in the day, Spadafina4 accompanied Burns to the bank where he negotiated two of the checks. In the presence of bank officer Tommy Crews, Spadafina told Burns that the $5,000 check had not come in yet, but would arrive the following day. Burns negotiated the other two checks and paid off the mortgage on his house as well as other outstanding loans. In addition, Burns paid $1,139 to Spadafina on an outstanding debt. He also deposited $2,000 into his son Michael's savings account. Because Burns did not have the savings account book with him at the time, Crews gave him a receipt reflecting the deposit of the money.
After these transactions, Spadafina drove Burns back to the motel. Spadafina showed Licari the third check for $5,000 and expressed his intent to cash the check. Later that afternoon, Spadafina and the defendant went to the bank and cashed the check. Three thousand five hundred dollars was applied to pay the defendant's delinquent mortgage payment on the motel. The remaining $1,500 was given to Spadafina.
The testimony at trial diverged as to the circumstances under which the $5,000 check was negotiated. According to Licari, several weeks before Burns's murder, he met with Spadafina and the defendant to discuss murdering Burns. Licari asserted that the three agreed that if Spadafina and Licari would kill Burns, the defendant would pay them $10,000. Licari said that the defendant wanted Burns dead because she hated him, did not want him around their son, and believed that if he were dead, she would not have to pay him the $50,000 she owed him under the divorce settlement. Licari said that the three waited for the insurance checks before killing Burns because Burns owed Spadafina a significant amount of money, and Spadafina expected to be paid from the proceeds of the checks. Licari's version of the check negotiation was that he, Spadafina, and the defendant agreed that the defendant would negotiate the $5,000 check. They would allow her to use $3,500 of the check to make her mortgage payment, and she would pay them the remaining $1,500 as a down payment on the murder.
The defendant denied that she was involved in a scheme to have Burns murdered. She said she maintained a friendly relationship with her ex-husband and allowed their son Michael to spend as much time as possible with his father. She testified that on the day of the murder, she received a telephone call from Burns asking her to go with Spadafina to cash the $5,000 check. Burns told her he would lend her $3,500 of the check to pay on the motel's mortgage and instructed her to give the remaining $1,500 to Spadafina. The defendant admitted that she signed Burns's name to the check in question. While she admitted giving the $1,500 to Spadafina, the defendant denied that the $1,500 was a down payment on a contract for murder.
It is undisputed that later that night, Spadafina, Licari, and Burns went to dinner at the Five Star Restaurant in Camden. While driving Burns back to the motel, Spadafina signaled Licari who then started strangling Burns with a clothesline cord. When Licari was unsuccessful in killing Burns, Spadafina pulled the car over, walked around to the passenger side where Burns sat, and slit his throat with a knife, killing him. Spadafina and Licari then pulled the body from the car and dragged it some fifteen or twenty feet from the road where they left it face down on the ground. Before leaving, they rifled through Burns's pockets, taking his personal papers and his wallet, but leaving the key to his motel room.
The men then proceeded to a car wash where they washed the car's interior and exterior. They also cleaned the knife and threw it behind the car wash. Before they left the car wash, Licari tore and threw away the savings deposit receipt reflecting Burns's $2,000 deposit into his son's savings account earlier that day. According to Licari, they then drove to the Wismer Motel and asked to stay in Burns's room while the defendant washed their bloody clothing. While there, Licari said, they gave the defendant the savings account book they took from Burns's pocket. Because he realized that the book did not reflect the deposit made earlier that day, Licari returned to the car wash, retrieved the pieces of the savings deposit receipt, and taped them back together.
According to Licari, while he and Spadafina were at the motel, they...
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