STATE OF TENNESSEE v. BRENDA ANNE BURNS
No. W1996-00004-SC-R11-CD
IN THE SUPREME COURT OF TENNESSEE AT JACKSON
November 8, 1999
HON. JULIAN P. GUINN, JUDGE
FOR PUBLICATION; HENRY CIRCUIT
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
OPINION
AFFIRMED AS MODIFIED BARKER, J.
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),
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
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.
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
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.
The defendant admitted seeing Spadafina and Licari at approximately 10:00 to 10:15 on the night in question and admitted that they had given her the savings account book. She testified that Burns told her he was opening an account for Michael, so she took the book and put it in a drawer. She denied either that she noticed anything unusual about Spadafina‘s or Licari‘s appearances or that she laundered their clothing that night. She reiterated her denial that she had ever made arrangements with Spadafina or Licari to pay them for the murder of Burns.
Burns‘s body was discovered two days later when school children spotted it from a bus. After police searched the body for identification and found the Wismer Motel key, they went to the Motel and informed the defendant of Burns‘s death. When they asked the defendant about Burns‘s associates, she gave them Spadafina and Licari‘s names.
The police picked up Spadafina and Licari separately and interviewed both men. Remaining faithful to the cover story, Licari told police that he and Spadafina ate dinner with Burns and that Burns walked home afterwards. Spadafina, on the other hand, claimed that Licari became uncontrollable and crazy, dragged Burns from his motel room, and drove away with him in the car. When Licari returned, the car was full of blood, and Licari told Spadafina he killed Burns. Police had Spadafina relate his version of the events to Licari, then told Licari that Spadafina would be released and that he alone would be charged with the murder.
Licari, angry at Spadafina‘s betrayal, reconsidered and confessed to police that he attempted to strangle Burns but that Spadafina slit Burns‘s throat. Spadafina eventually admitted that he was in the car when Burns was killed but claimed Licari slit Burns‘s throat. Although Licari‘s statement suggested that the men were hired to commit the murder, neither man immediately implicated the defendant in the murder.
A Henry County Circuit Court jury found the defendant guilty of first-degree murder. She was sentenced to life imprisonment. Before the hearing on the Motion for New Trial, the defendant hired new counsel to pursue the motion and, failing relief on the motion, to pursue her appeal.
In her Motion for New Trial, the defendant attacked the trial court‘s failure to instruct the jury sua sponte on the lesser offenses of facilitation of first-degree murder and solicitation of first-degree murder. She also alleged ineffective assistance of counsel in trial counsel‘s failure to request such instructions, and in counsel‘s failure to investigate the case adequately and present evidence on her behalf. Specifically, the defendant alleged that counsel was aware of a separate plot to kill Burns but failed to investigate and develop such proof before the jury.
At the hearing on the Motion for New Trial, the defendant presented affidavits from Ruby Blankenship, Kathy Decker, and trial counsel Andrew Frazier. The defendant also presented live testimony from Frazier, Blankenship, the Benton County Sheriff, and agents from the Tennessee Bureau of Investigation (TBI). The testimony indicated that Burns employed Blankenship for approximately two months in 1994. During this employment, Blankenship overheard conversations between Spadafina and Paul Frappolo, Burns‘s son from a previous marriage, wherein Spadafina and Frappolo plotted to kill Burns so that Frappolo would inherit Burns‘s interest in the Wismer Motel. Both Blankenship and Decker personally observed Spadafina acting abusively toward Burns. Frappolo was present on these occasions and commented, “let him [Spadafina] kill him [Burns].” The defendant was not present, and her name was never mentioned during these episodes.
Blankenship and her mother, Decker, reported the abusive behavior and threats to officials at the Benton County Sheriff‘s Department prior to Burns‘s death, but the Department took no action. After
Trial counsel testified that he did not pursue the Blankenship and Decker allegations, because they did not exonerate the defendant. Furthermore, neither Blankenship nor Decker was mentioned as State‘s witness for trial. Counsel admitted, however, that when Blankenship and Decker were interviewed in preparation for the hearing on the Motion for New Trial, their statements tended to show that Frappolo, and not the defendant, may have been responsible for procuring the murder of Burns. Counsel admitted that if he had this information prior to trial he would have used it to defend the charge against the defendant. Regarding the failure to request jury instructions on the lesser offenses of facilitation or solicitation of first-degree murder, counsel testified that because the defendant maintained her innocence, he did not consider that she might be found guilty of a lesser offense.
The trial court refused to accredit the testimony of Blankenship, declined to second guess trial counsel‘s decision not to pursue the information presented in the TBI memorandum, and denied the Motion for New Trial. On appeal, however, the Court of Criminal Appeals expressed concern with the disreputable character of the State‘s key witness, Licari, and the weakness of the corroborating evidence. The intermediate court found it “inconceivable” that trial counsel declined to investigate the allegations made by Blankenship and Decker or to present their testimony in Brenda Burns‘s defense. Accordingly, because the defense had only to raise a reasonable doubt in the minds of the jurors as to the defendant‘s guilt, the Court of Criminal Appeals held that the defendant had demonstrated a reasonable probability that the result of the trial would have been different had evidence of Frappolo‘s threats been before the jury. Thus, the Court of Criminal Appeals reversed the defendant‘s conviction and remanded for a new trial. We affirm that decision as herein modified.
STANDARD OF REVIEW
A trial court‘s findings of fact are conclusive on appeal unless the evidence in the record preponderates against those findings. See State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). Where appellate review is of purely factual issues, the appellate court will not reweigh or reevaluate the evidence. See Henley, 960 S.W.2d at 579. Moreover,
Review of a trial court‘s application of the law to the facts of a particular case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). Cases that involve mixed questions of law and fact are subject to de novo review. See Harries v. State, 958 S.W.2d 799, 802 (Tenn. Crim. App. 1997). We have determined that the issues of deficient performance by counsel and possible prejudice to the defense are mixed questions of law and fact, as is the propriety of charging lesser-included offenses; thus, our review of this case is de novo. See Goad v. State, 938 S.W.2d 363 (Tenn. 1996).
INEFFECTIVE ASSISTANCE OF COUNSEL
Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution guarantee a criminally accused the right to representation by counsel. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). Both the United States Supreme Court and this Court have recognized that the right to such representation encompasses the right to “reasonably effective” assistance, that is, within the range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter, 523 S.W.2d at 936.
The overall standard by which effective assistance of counsel is judged is “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Two components must be considered: first, a defendant must show that counsel‘s performance was deficient in some way; second, a defendant must show that the deficient performance actually prejudiced the defense. See id. at 687; Goad, 938 S.W.2d at 369; Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994). A defendant must establish both prongs of the test; failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on an ineffective assistance claim. See Goad, 938 S.W.2d at 370. The burden is on the defendant to prove these factors by clear and convincing evidence.5
Certain broad criteria have been accepted as guidelines for effective representation. In Baxter, we cited with approval the duties and criteria included in the American Bar Association Standards for the Defense Function:
(1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client.
(2) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them. . . . Counsel should also be concerned with the accused‘s right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pre-trial psychiatric examination or for the suppression of evidence.
(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that “all available defenses are raised” so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research.
523 S.W.2d at 932-33 (quoting United States v. DeCoster, 487 F.2d 1197, 1203-04 (D.C. Cir. 1973)).
Pertinent to the issue raised in this case is the duty to investigate.
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.
Strickland, 466 U.S. at 691; see also United States v. Beasley, 491 F.2d 687, 696 (6th Cir. 1974); DeCoster, 487 F.2d at 1203-04; Baxter, 523 S.W.2d at 933. Failure to conduct a reasonable investigation constitutes deficient performance. See Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997).
Nevertheless, “[a]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.6
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 should have been instructed. Furthermore, based on the language of the criminal responsibility statute,
An understanding of the development of the law related to lesser-included offense instructions is necessary to our analysis of this issue. In Beck v. Alabama, 447 U.S. 625 (1980), the United States Supreme Court succinctly summarized the value and purpose of lesser-included offense instructions.
At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic
alternative than the choice between conviction of the offense charged and acquittal. . . . [P]roviding the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard.
Id. at 633-34 (citations and footnotes omitted).
A trial court‘s duty to charge juries as to the law of each offense “included” in an indictment has been statutorily mandated in this State for some time. See
In defining a lesser-included offense, this Court described an offense as “necessarily included in another if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all the elements of the lesser.” Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979). This definition followed a statutory elements approach, wherein the determination of whether an offense was included in another for purposes of jury instruction involved a strict comparison between the statutory elements of the offense charged in the indictment with the elements of the lesser offense at issue. Under this approach, an offense is not “necessarily included” in another unless the elements of the lesser offense are a subset of the elements of the charged offense. See Schmuck v. United States, 489 U.S. 705, 716 (1989). In other words, the lesser offense may not require proof of any element not included in the greater offense as charged in the indictment.
The definition of lesser-included offenses was briefly expanded to include lesser “grades” or “classes” of offenses. See State v. Trusty, 919 S.W.2d 305 (Tenn. 1996). This expansion was based on the perception that, under a strict application of
The expanded definition of lesser-included offenses was based upon the premise that the terms “grades” and “classes” had a meaning separate and distinct from the term “lesser-included.” However, historical research into the meaning of those terms as originally adopted reveals that the terms were used synonymously, without distinction. See Acts of 1877, Ch. 85, § 1; see also Good v. State, 69 Tenn. 293 (Tenn. 1878). Thus, the Trusty Court wrongly assumed that the terms had any distinct meaning separate and apart from “lesser-included.”
The expanded definition in Trusty also proved unworkable. Under the 1989 Act, any particular chapter or part of the Code might contain myriad offenses that, while related in a general sense, were distinct in nature. For example, while Part 5 of Chapter 13 of the Code addresses sexual offenses in general, it includes offenses as diverse as rape, sexual battery, public indecency, and prostitution.8 It is ludicrous to suggest that a jury considering a charge of aggravated rape should receive an
That criminal provisions are scattered throughout the Tennessee Code also proved problematic.9 Moreover, the Trusty analysis simply did not apply in many cases. See State v. Ealey, 959 S.W.2d 605, 611 (Tenn. Crim. App. 1997). As the cases developed in the trial courts, it became apparent that because the requirement for instruction of lesser offenses was mandatory under section 110, Trusty‘s directive to instruct lesser “grades” or classes” of offenses could conceivably confront a defendant with a jury instruction for an offense for which he or she had no notice. This would constitute a violation of our own constitutional requirement that a defendant be given notice of the offenses with which he or she is charged.
The problem after Dominy remains this: under our present statutory scheme, the State has broad discretion to charge the offense it deems appropriate. Often, this is the most serious offense conceivable even though the evidence may not be clear as to one or more elements of the offense. Application of the statutory elements test of Howard may preclude instruction on a lesser related offense where that lesser offense contains an element not required for the greater offense. Thus, in some cases, application of the Howard analysis may deprive the defendant of the right to present a defense.
The classic example is where the State has charged rape and proves sexual battery, but the evidence does not support a finding of penetration, a necessary element of rape. Under Howard, technically a defendant could not get an instruction
A number of jurisdictions have resolved this dilemma by adopting either verbatim or modified versions of the American Law Institute‘s Model Penal Code definition of “lesser-included” offenses.10 See Model Penal Code § 1.07(4) (1980). Under the Model Penal Code definition, an offense is “included” when
(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
We interpret the first part of the definition to be consistent with Howard‘s statutory elements test. The second part of the definition, attempt or solicitation, applies to situations in which the defendant attempted to commit or solicited another to commit the crime charged or a lesser-included offense, but the proof fails to show that the crime was completed. We interpret the third part of the definition, lesser injury or risk of injury or lesser culpability, to include offenses that are still logically related to the charged offense in terms of the character and nature of the offense but in which the injury or risk of injury, damage, or culpability is of a lesser degree than that required for the greater offense.
Based on our interpretation of its terms, we find that the Model Penal Code approach, as hereinafter modified, is logical and consistent with the structure of our
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
Part (a) of this test defines lesser-included offense using a statutory elements approach consistent with Howard. Part (b) of the test modifies the statutory elements
Having stated the test for determining whether a particular offense is a lesser included offense of another, we must acknowledge that our inquiry continues. Whether a lesser-included offense must be charged in a jury instruction is a two-part inquiry. First, the trial court must apply the new test to determine whether a particular lesser offense is included in the greater charged offense. If a lesser offense is not included in the offense charged, then an instruction should not be given, regardless of whether evidence supports it. If, however, the trial court concludes that a lesser offense is included in the charged offense, the question remains whether the evidence justifies a jury instruction on such lesser offense.
This case presents this Court with the opportunity to clarify when instructions on lesser-included offenses should be given. The Model Penal Code incorporates a rational basis test for determining when to instruct on lesser-included offenses. Section 1.07(5) of the Model Penal Code provides: “The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” A number of jurisdictions have adopted this provision verbatim by legislation,13 while other jurisdictions have adopted the rational basis test by judicial decision.14
This Court has not previously adopted the rational basis test. In view of the broad language of our statute requiring a charge on lesser-included offenses,
When read together, our prior decisions, such as Templeton, Strader, and Johnson, and our recent decisions, such as Trusty, Cleveland, Bolden, and Langford, support the application of a two-step analysis for determining whether a lesser-included offense instruction should be given. First, the trial court must determine whether any
We now apply the above-stated tests to this case to determine whether the jury should have received instructions on the lesser-included offenses of facilitation and solicitation.
Facilitation of a felony as a lesser-included offense
The defendant claims reversible error in the trial court‘s failure to charge the jury on the offense of facilitation of a felony. The original indictment charged:
[Defendant] intentionally, deliberately and with premeditation act[ing] to promote or assist the commission of first-degree murder, or act[ing] to benefit in the proceeds or results of the commission of first-degree murder, by soliciting, directing, aiding, or attempting to aid MICHAEL SPADAFINA and VITO LICARI in the intentional, deliberate and premeditated killing of PAUL A. BURNS on or about the 13th day of December, 1994, thereby becoming criminally responsible for the aforesaid conduct of MICHAEL SPADAFINA and VITO LICARI (T.C.A. 39-11-402) and committing the offense of First-degree MURDER, in violation of T.C.A. 39-13-202(a)(1), against the peace and dignity of the State of Tennessee.
The indictment thus expressly charged the defendant with first-degree premeditated murder, based upon a theory of criminal responsibility.
Part 4 of Chapter 11 of Title 39 of the Tennessee Code sets forth the various means for incurring criminal liability. A person is punishable to the same degree as a principal offender if “the offense is committed by the person‘s own conduct, by the conduct of another for which the person is criminally responsible, or by both.”
Facilitation of a felony is a lesser degree of criminal responsibility than that codified at
A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.
First, we note that the Sentencing Commission Comments expressly characterize facilitation as “a lesser included offense if the defendant‘s degree of complicity is insufficient to warrant conviction as a party.”17
Having concluded that facilitation was a lesser-included offense of criminal responsibility for first-degree murder as that offense was charged in the indictment, we shall attempt to provide guidance to the trial court concerning instruction upon retrial. The facts developed at trial were susceptible of only two interpretations. Licari testified that the defendant openly discussed hiring him and Spadafina to kill her ex-husband, that they agreed upon a price, and that the defendant gave them an “advance” in the amount of $1,500 taken from Burns‘s forged check. The defendant, on the other hand, denied knowing Licari other than meeting him briefly the night Burns was murdered. She denied soliciting either him or Spadafina to kill her ex-husband, and she denied that the $1,500 she gave Spadafina was for the purpose of making a down payment on the murder for hire. Furthermore, she testified that she had Burns‘s permission to cash the $5,000 check. Therefore, either she was guilty of first-degree murder by soliciting Licari and Spadafina to kill Burns, or she was wholly innocent of any wrongdoing.
The defendant now argues that there was a third interpretation: while she did not directly solicit the murder of Burns, she was aware that it might occur and that she facilitated its commission by forging Burns‘s name to the check so that the killers might flee the jurisdiction. Thus, she had knowledge for purposes of a finding of facilitation but not the intent required to hold her liable as a principal. This argument‘s flaw is that absolutely no evidence exists upon which a reasonable juror could reach such a conclusion. Thus, no instruction on the lesser-included offense of facilitation was warranted. See Boyd, 797 S.W.2d at 593; Owens, 221 S.W.2d at 520; Powers, 97 S.W. at 87. While we agree with the Court of Criminal Appeals that it was not error to fail to charge facilitation as a lesser-included offense of first-degree murder under the facts as they developed at the first trial, we caution the trial court that it should conduct an independent evaluation of the facts as they are developed at the new trial and decide whether or not to charge facilitation based on those facts.
The defendant also complains of the trial court‘s failure to charge the jury on the offense of solicitation of first-degree murder. The offense of solicitation is defined as follows:
Whoever, by means of oral, written or electronic communication, directly or through another, intentionally commands, requests 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 be committed, is guilty of the offense of solicitation.
Furthermore, under part (c) of the lesser-included offense definition adopted above, solicitation to commit a crime is expressly recognized as a lesser-included offense of the charged offense. It follows that under either part (a) or part (c) of the definition, solicitation to commit first-degree murder was a lesser-included offense in this case.
Having concluded that solicitation was a lesser-included offense of criminal responsibility for first-degree murder as that offense was charged in the indictment, we consider whether it should have been instructed. Clearly direct evidence from Licari indicated that the defendant solicited him and Spadafina to kill Burns. As we have recently noted:
“[T]he evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court‘s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury‘s truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an ‘all or nothing’ choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.”
Bolden, 979 S.W.2d at 593 (quoting People v. Barton, 906 P.2d 531, 536 (Cal. 1995)). Whether sufficient evidence supports a conviction of the charged offense does not affect the trial court‘s duty to instruct on the lesser offense if evidence also supports a finding of guilt on the lesser offense. The jury, not the judge, performs the function of fact-finder. We conclude that it was error to fail to charge the offense of solicitation. Again, however, the facts as they develop at the defendant‘s new trial will determine whether an instruction on solicitation is then warranted.
After exhaustively analyzing the facts and law pertinent to the case, we conclude that the defendant was deprived of the effective assistance of counsel when counsel failed to investigate adequately and present evidence concerning whether Paul Frappolo, and not the defendant, may have been responsible for soliciting Burns‘s death. For purposes of retrial, we note that the offenses of facilitation and solicitation are lesser-included offenses of criminal responsibility for first-degree murder as charged in the defendant‘s indictment, and we instruct the trial court to consider jury instructions on those offenses if legally sufficient evidence at trial supports convictions for these offenses.
WILLIAM M. BARKER, JUSTICE
Concur:
Anderson, C.J.
Birch, Drowota, Holder, J.J.