### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MAY 2000 Session
MICHAEL JOSEPH SPADAFINA v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Benton County No. CR-451 Julian P. Guinn, Judge

No. W1999-00268-CCA-R3-PC - Filed October 23, 2000

The Benton Co unty Circuit Court dismissed Michael Joseph Spadafina’s petition for post-convictio n relief in which Spadafina raised a number of issues of trial error and ineffective assistance of trial counsel in his conviction of first degree murder. On appeal, the petitioner limited his issues to the ineffectiveassistance of counsel in not seeking an individual, sequestered voir dire of the jury and in not challenging the use of damaging character evidence. Because we conclude that the petitioner failedto carry his post-conviction burden to prove his claims by clear and convincing evidence, we affirm the dismissal of the post-conviction petition.

Tenn. R. App. P. 3; Judgment of the Trial Court is AFFIRMED.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J ERRY L. S MITH and R OBERT W. W EDEMEYER , JJ., joined.

Victoria L. Dibonaventura, Paris, Tennessee, for the Appellant, Michael Joseph Spadafina.
Michael E. Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, G. Robert Radford, District Attorney General, for the Appellee, State of Tenne ssee. OPINION
The petitioner, Michael Josep h Spadafina, appea ls the Benton County Circuit Court’s dismissal of his petition for post-conviction relief. In 1995, a Benton County jury convicted the petitioner of the first degree murder of Paul Burns, and the trial court sente

nced the petitione

r to life imprisonment. This court affirmed the petitioner’s conviction. See State v. Spadafina , 952 S.W.2d 444 (Tenn. Crim. App. 1996), perm
. app
. denied(Tenn. 1997) . In this appea l, the petitioner pr

esents the following issues for our review:1 On direct examination, L icari, as a state witness, testified as follows:
Q. Okay; now, did you and Mr. Spadafina come up – or was th ere some dis

cussion concerning killing Paul Burn s?

A. At one point the

re was. Ever

since I was

down her e, which was a bout a mo nth and a half,

Michael was

telli ng me how much h

e hated t his old ma

n, and somebody wanted him dead. But he was owed money by Mr. Burns. I believe ther e wa s a property fire. And Michael was sup posed to get five thousa nd dollars from Mr. Burns. And he was owed twenty-three hundre d dollars . So he told me Mr. Burns (continued ...) -2- 1. Whether trial coun

sel was ineffec tive in failing to move the trial court to order ind

ividual voir dire

in the jury selection process.
2. Whether trial counsel was ineffective in failing to challe

nge, or in one case, sponsoring evidence which refle cted negatively on the petitioner’s character. Because we conclude that the petitioner failed to carry his post-conviction burden of showing that trial counsel was ineffective, we affirm the trial court’s dismissal of the post-conviction petition.
I. FACTS.
A. The Petitione

r’s Trial.
In a sharply contested

t rial, the state the orized tha t Brenda Burns, th e victim’sexwife, hired the petitioner and his houseguest, Vito Licari, to k ill the victim and that the two men, acting in concert, murdered the victim on December 13, 1994. The state relied heavily upon Licari’s testimonythat the petitioner cut th e victim’s th

roat while Licari tried ineffectually to stra ngle the victim. The petitioner admitted that he was present during the homicide but deniedthe murder-forhire arrangement and denied participating in the killing.

In Licari’s direct testimony as a state witness,

he admitted he was a “thief” who had spent a total of eighteen y

ears in prison for

various offense

s including burg

laries and larc

enies. He also acknowledged that he was HIV positive because of his use of needles to inject cocaine. He admitted that he planned to plead guilty to the first degree murder of Paul Burns and would receive a life sentence pursuant to a plea agreement.

Licari testified that Brenda Burns agreed to pay installments

totalling $10,000 to hire the murder of Paul Burns. He detailed the use of fire insurance proceeds to finance the $1500 down payment on the murder contrac

t. According to L

icari, an insura

nce company

paid a house fire loss claim to Paul Burns, and

Brenda Burns c

onverted some of t

he proceeds to us

e as the down pay

ment. Licari testified that the petitioner claimed to havebu rned the victim’s house in exchange for the victim’s promise

to pay him $5,000. 1 Licari claimed that the petitioner wanted to delay the murder1 (...continue d) cannot be killed or die u ntil he has paid the rest of the mo ney. Q. Do yo u know why h e owed him that money?

A. Well, from Michael Spadafina, the story I got was that t here was an arson at the property that Mr. Burns owned an d Mich ael Spad afina had do ne it and he o wed him five thousand dollars for d oing it. Q. All ri ght; di d the house

- - you don’t know

when that

happened? A. That was prior t

o me coming to Tennessee.
2 On direct examination, L icari testified as follows:

Q. [by G eneral Rad ford:] Just go ahead and explain wha t they were do ing - - -

A. Well, prior to my coming to Tennessee Michael had told me when he was down there the last ti

me, in late October, about these bank scams he was pulling wit h Mr. Burns, and if I would come down to Tennessee he would guarantee me a thousand dollars. So that’s how I ended up knowing about it. I have driven the car numerous times with Michael Spad afina and Paul Burn s when they did these bank scam s. Q. What would t

hey do? A. What they would do is open false bank accounts, depositing a hundred dollars in a bank to open the

account, go to anot

her bank, deposit

a hundred dollars,

then open another account. Once they received checkbooks, they give you temporary checkbo oks or wha tever you wa nt to call them, the y would go from one b ank, write out a check from the other account and cash the check, or would deposit it rat her, and with draw a cert

ain amount

on the che

ck. And th

ey were doi

ng this back and forth in different

counties. And that’s how we were livi ng. Q. They were kiting chec ks?
A. Yes, sir. (continued ...) -3- until after the insurance proceeds were paid so that Paul Burns could pay the petitioner the $2300 Burns still owed on the arson fee.

Licari testified that “Michael Spadafina despised [the victim]. He may t ell you he loved him, but he despised him.”

Licari further testified that the petitioner signed an app earan ce bond on charges against the victim stemming

from a check-ki

ting scheme in

which all three men were involved. He described in some detail his r

ole in assisting the petitioner and the victim to defraud banks by “kiting” chec

ks. 22 (...continue d) Q. Now, that’s h

ow you got you income?
A. Well, Micha

el was gi ving me money

and I was gettin

g part of the money from the checks, yes. Q. Okay; so you were in o n it?
A. Yes, sir, I was.

. . . Q. All right; and did the law b egin to catch u p with you or with - -

. . . A. With M r. Burns, the w arrants were falling in different co unties. And he had to appear in different counties f or different cases on the check kit ing.

-4- After Brenda Burns converted some of the insurance proceeds and paid the initial installment for

the murder, Licari and the petition er decided t o kill Pau l Burns that night durin g a drive in the petitioner’s car. According to Licari, the petitioner drove the ca r, Paul Burns occupied the front passenger seat, and Licari sat in the bac k seat. When the petitioner gave a signal, Licari unsuccessfully

attempted to strangle Burns with a cord. The petitioner stopped the car, came around to the passenger side, and cut the victim’s throat with a knife from his kitchen. Licari testified that the two then carried the body to the top of an embankment.

In his case-in-chief, the petitioner presented evidence which suggested that it was the victim and Licari who were

kiting checks and that

the petitioner had himself been victimized by one of the victim’s bad ch

ecks. He showed t

hat the victim was an elderly, d iabetic man, that the petitioner and the victim “were real close, good friends,” and that after the victim’s house

burned, the petitioner provided shelter for the victim and assisted him wit h me als , la und ry, medication and transportation. The victim was once married to the petitioner’s aunt. The petitioner was attentive to the victim’s ten-year-old son. The petitioner

showed that he attended a local Presbyterian church, hadbeen gainfully employed a t various jobs since arriving in Tennessee, was paying for a house and eight acres where he

andhis fiancée milked a cow and raised chickens, and provided the charity of food and shelter

for both the victim and Licari. Through investigating officers and a paramedic, the p etitioner attempted to show that the victim’s body had been dragged, not ca rried as Lica

r i claimed, up the embankment t o where it was found. Finally, the petitioner prese

nted three witnes ses, including one who was incar cerated in the B enton County j ail with Licar i after his arrest for the murder, who testified that Licari admitted that he, acting alone, k il led Paul Burns and that he described the murder in detail. Audrey Coppola, t he pet itioner’s fiancée, testified that Licari “disliked [the victim] intensely,” and her ten-year-old son testified that Lica ri said that he would kill the victim “one of these days.”

The petitioner

testified that he a

nd the victim

became acquai

nted when both live

d in New York. The victim

came to Tennessee under the federal witness relocation program and asked the petitioner to join him in this state. The petitioner moved to Tennessee in the summer of 1994.-5-

Later that y

ear, the petition

er invited Lic

ari, with whom he ha

d been incarce

rated in New Yor

k, to come to Tennessee as well. Audrey Coppola had urged t he petitioner to invite

Licari to stay

with themin Tennessee bec

ause she was concern ed abo ut Lica ri’s c ocain e addi ction and hi s HIV infection.
The petitioner denied any involvement in the Burns house fire and stated that he and the victim were at the bank when the house caught fire. He also denied any involvement in the victim’s check-k

iting activities.
The petitioner

testified that he and Mrs. Burns gave the victim all of the insurance checks and that, from the proceeds, the victim gave the petitioner

$2,200, part of wh

ich the victim paid toward the petitioner’s home mortgage note. The petitioner denied any

agreement with

Mrs. Burns to kill the victim.

In the petitioner’s v

ersion of the fat

al c ar ride, Licari unexpectedly attacke d the victim. The petitioner ran the car off the road trying to re achfor the rope Licari held around the victim’s neck. Licari th

en threatened the petitioner with a knife and ordered him to stop the car. After the petitioner stopped and began to walk away, L icari ordered the petitioner to return. The petitioner testified that when he returned to the car, the victim was dead and Licari th

reatened to kill him if he did not coope

rate in disposing of

the body and concealing the crime. However, dur ing the ensuing two days, the petitioner declined to report the murder. He testified that he feared that

Licari would kill him or implicate him in the murder and would kill his fiancée and her two children. He also declined to

report the murder when he attended court the day af ter the murder as the surety on the victim’s bond, when the petitioner was in the presence of

numerous law enf

orcement offic

ers. He also met with the sheriff of Humphreys County and asked about being relieved from

the victim’s appearance

bond. During the visit, the petitioner never mentioned the ho mic ide or the need to be protected from L

icari. At trial, the state argued to the jury in closing, There’s been no proof, really, of any legitimate income at all that [the petitioner] made la

st year. But I submit to y

ou that the proof in

this case has shown that he ha

d some other irons in the fire, that he and Paul Burns were

riding ar ound West Tennessee kiting checks. . . . And th e proo f has also shown that on September the 20 th the defendant,

Michael Spadafina, called [the insura nce agency

] and said that Mr. Burns wants

. . . to increase the insurance coverage on that house . . . [

to] a total of thirty thousand. Well, fifteen days later . . . that house mysteriously burns

down. And in the ensuing weeks and months it’s Michael Spadafina who is calling the insurance ad justers, saying when are the checks going to be ready , what can I do to hel

p you get the

money to Mr. B

urns.

. . .-6- But there’s another op por tunity for the defendant to make some money. He enters into negotiations with Vito Ant hon y Licari, the hardened criminal that he brought to Te nnessee , and Bren da Bu rns , th e ex -wi fe of Pau l Bu rns
. . . . A gr eat opp ort uni ty to m ake s ome mon ey.

A deal was struck, a bargain.
After hearing the

evidence, the jury convicted the petitioner of the first degree murder of P aul B urns, but was unab le to agree on a

sentence. Ther

efore, the tria

l court sentence

d him to imprisonment for life. B. The Post-Conviction Hearing.

In the petitioner’s post-conviction hearing, he introduced a transcript of the trial proceedings and called his trial counsel, Terry J. Leonar d, to testi fy. Mr. Leonard acknowledg ed that, before t

he trial beg an, he was con cerned about pretrial ne wspaper pub licity. The tr ial judge preliminarily

questioned the prospective venire, followed by counsel’s voir dire . Prospective jurors were either excused or retained based upon their general answers to questions about their prior knowledge of the case, without the prospective jurors being pressed to state “what it was that they heard.” Mr. Leonard

testified that he d

id not explore the de

tails because

he feared that the

answers to probing questions would taint the remaining jury pool. After discussion with the petitioner, he decided not to request a ve

nue change, no

r did he ask the tri

al court to order individual voir dire of prospective jurors. Mr. Leonard fe lt that, based upon hi

s twelve ye

ars experience p

racticing law i

n Benton County, he kn

ew most of the peop

le and was comfor

table with their “

phil osophy” i n disposing of criminal cases. He believed the local “point of view” would benefit the petitioner.

Mr. Leonard discussed each juror challenge with his client, and the two of them collaborated

on decisions to excus

e and retain

jurors, including one juror who was the brother-in-law of a d epu ty sh eri ff i n Ben ton Cou nty.

Prior to trial, Mr. Leonard wasaware that the fire insurance proceeds played a part in the state’s theory of murder for hire, and he knew that th

e petitioner was a

surety on the victim’s bond in the check-kiting or bank fraud charges. Mr. Le onard had rev iewed five prior statements made by Licari ; however, he was unaware that Licari would testify at trial that the petitioner was involved in the arson and check-ki ting. Consequently , he filed no pretr

ial motion to exclude t

his evidence. He thought evidence about the source of the money that the victim paid to the petitioner or on his account “w ould come in, and, in fact, that would be admissible.” Nevertheless, when testimonywas introduced at trial that the petitioner was the arsonist, Mr. Leonard did not object and didnot ask for a jury-out heari ng. Neither did he effectively object nor did he seek a hearing when trial testimony implicated the petitioner in the check-kiting scheme.3 The petitioner did not test

ify at t he post-convict

ion hearing;

however, he address ed the co urt and voiced his disagreem ent with the man ner in which p ost-convictio n counsel ha ndled the p roceedin g. Primarily, he was aggrieved

that she limited her foc us to provin g grounds of ineffective assistan ce of coun sel that were raise d in this appeal. H e expresse

d dissat isfact ion wit h post-c onvicti

on counsel ’s deci sion to a bandon other

issues , such as

pros ecutoria l misconduct and conceal ment of exculpat

ory evidence, which he had included in the post-co nviction petition. He also complained of counsel’s unwilli ngness to cal

l the Distr

ict AttorneyGeneral as a witness at the post-convi ction hearing. The de cision of which claims should be pursue d are ultimate ly one of strategy, w hich is a matter entrus ted to coun sel. King v. State , 904 S.W.2d 319 , 334 (Tenn. 1999). -7-

Mr. Leonard testified that the defense theorized that the petitioner “did not kill or act in concert” with Licari to kill Paul Burns. He opted for a strategy to sully both Licari a

nd the victim, an d to this end, he intended to show the jury that the victim was a Mafia-type criminal fr om Ne w Yor k who came to Be nton Coun ty, Tennessee u nder the fed eral witnes s relocatio n progr am. Th e petitioner agre ed to the str

ategy of putting the victim “on trial.” In lig ht of this strategy, counsel believedthat the information which was imparted to the jury about the defendant’s role in arson and check-kiting was not prejudicia l to the defense be

cause this information confirmed the victim’s and Licari’s involvement in criminal activity. However, Mr. Leonard acknowledge d that thi s strategy ultimately

allowedthe state

to argue that, because the petitioner was an arsonist and a check-kiter, he would commit murder for hire. Mr. Leonard testified on cross-examination that, had the state not introducedevidence of the victim’s and Li

cari’s criminal

lifestyles,

he would have done so. To th

is end, he willingly allowed the jury to know that

the petitioner ha

d been incarce

rated in New Yor

k to informthe jury of Licari’s criminal past. He tried to develop proof to s

how that although

the victim and Licari had persisted in their errant way s, “out doing whatever criminal

activity the

y wanted to do,” the petitioner wa

s leading a resp

onsible lifesty

le in Tennessee a

nd th at he “ was out tryin g to wor k” i n or der t o su ppo rt h is f ami ly.

Fin all y, Mr. Leonard

testified that he a

nd his off ice sta ff i nve ste d ma ny, many hours in preparationfor the defense . Ultimately, when the case

went to the jury, Mr. Leonard believed they had succeeded i

n presenting an

optimum defense th

at would win an ac

quittal. 3
II. GOVERNING PRINCIPLES OF LAW.
A. Post-Convict

ion.
The post-conviction petitioner bears the burde

n of proving his

or her allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the appellate court accords to the trial court’s findings of fact the weight of a jury verdict, and thes

e findings are conclusive on appeal unless the evidence preponderates against them. Henley v. Sta te , 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

B. Ineffective Assist

ance of Counsel.-8- The Sixth Amendment to the United States Constitution and Article I, section 9 of the Tennessee Constitution both require that a defendant in a criminal case receive effective assistance of counsel. Baxter v. Rose , 52 3 S.W.2d 930 (T enn. 1975). When a defendant claim

s ineffectiveassistance of co unsel, the standar

d applied by

the courts of Ten

ness e e is “whether the advice given or the service rendered by the attorney is within the range of competence demande d by attorneys in criminal cases.” Summerlin v. State , 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).

In Stricklan d v. Washington , the United States Supreme Court outlined the requirements

necessary to demonstrate a violation of t he Sixth Am endment right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984). F irst, the petitioner must show that counsel’s performance fell below an obje

ctive standard of

reasonablenes s under prevailing prof

essional norms and

must demonstrate that counsel made errors so serious that he was not functioning as “counsel” guaranteed by the Constitution. Id . at 687, 104 S. Ct. at 2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors were so serious as to depr ive the petitioner of a fair trial, calling into question the reliability of the outcome. Id .; Henley v. Sta te , 960 S.W.2d 572, 579 (Tenn. 1997).
“When addressing an attorney ’s performance it is not our function

to ‘second gues s’ tactica l and strategic choices pertaining to defense matters or to measure a def ense attorney ’ s representationby ‘20-20 hindsight.’” Henley , 960 S.W.2d a t 579 (quoti ng Hellard v. State, 629 S.W.2d, 4, 9 (Tenn. 1982). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of hindsight . . . [and] evaluate the conduct from the perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065. “The f

act that a particular stra

tegy or ta ctic failed or hurt the defense, does not, standing alone, establish unreasonable representation.” Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only if the choices are informed ones based upon ade quate preparation.” Id

. To establish prejudice, a

party clai ming ineffectiv

e assistance of c

ounsel must

prove a “reasonable pr

obability tha

t, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id . at 694, 104 S. Ct. at 2068. A re asonable probab

ility is “a pr

obability sufficient to undermine confidence in the outcome.” Id

. III. THE PETITIONER’S I SSUES.
A. Ineffective Assistance of Counsel - - Voir Dire of Jury. The petitioner cl

aims that his trial c

ounsel performe

d deficiently

when he failed to press the trial court to c onduct i ndividual voir dire of the prospective jurors. Implicitly, the petitioner also claims that tri

al counsel faile

d to ask prospective jurors specific questio ns about their exposure to pretri

al publicity a

nd thereby

failed to ferre

t out possible juror b

iases.-9- A trial court’s method of conducting jury voir dire in a criminal case

must comport withconstitutional due process notions of fundamental fairness. See Mu’Min v. Virginia , 500 U.S. 415, 426, 111 S. Ct. 1899, 1905 (1991). However,

[u]nderthe constitutional standard . . . , “[t]he relevant question is not whether the community remembered the case, but whether the

jurors

. . . had such fixed opinions that they could not judge impartially the guilt of the defendant.”
Id

. at 430, 111 S. Ct. at 1 908 (quoti ng Patton v. Yount , 467 U.S. 1025, 1035, 104 S . Ct. 2885, 2891 (1984)). The law does not require that the jurors be “ignorant of the facts and issues involved.” Id

. “[J]urors may sit on a case, even if they ha ve formed an opinion on the merits of the case, if they are able to set that opinion aside and render a verdict based upon the evidence presented in court.” State v. Mann , 959 S.W.2d 503, 531 (Tenn. 1997).

With r espect to the method of c onducting voir dire , Tennessee courts have recognized that “where the cri

me is highly publicized, the better procedure is to g

rant the defenda

nt individual, sequestered voir dire, but it is only where there is a ‘significant possibility ’ that a juror has been exposed to potentially prejudicial material that individual voir dire is mandated.” State v. Cazes , 875 S.W.2d 253, 262 (Tenn. 199 4); see also State v. Smith , 993 S.W.2d 6, 29 (Ten n. 1999); State v. Cauthern , 967 S.W.2d 726, 749 (T enn. 1998); State v. Stephenson , 878 S.W.2d 53 0, 540 (Tenn. 1994). Concerning the content of voir dire questio ning, “both the de gree of exposur

e [to potentia lly prejudic ial information] and the prospective juror’s testimony as to his or her state of mind shall be considered in determining [a juror’s] acceptability.” Tenn. R. Crim. P. 24(b)(2 )

. However, the presence of pretrial publicit

y does not mea

n that voir dire “ questions regarding the content of any publicity to which [pro s pective] jurors ha ve been exposed” a

re constitutionall

y required. Cazes , 875 S.W .2d at 262; see also Mu’Min , 500 U.S. at 431-32, 111 S. Ct. at 1908; Stephenson , 878 S.W.2d at 540. Even under Rule 24,

[i]f the prospective juror has seen or heard and remembers information that will be developed in the course of trial, or that may be inadmissible but is no

t so prejudicial as to create a su bstantial risk that his or her judgment will be affected, the pr ospective juror’s acceptability

shall dependon whether the te stimony as to

impartiality is believed.
Tenn. R. Crim. P. 24(b)(2). Indeed, in light of the trial judge’s opportunity to hear and observe the prospective jurors, c ourts ha ve deferred to the trial judge to determine the ability of a prospe ctive juror to impartially hear the case. Mu’Min , 500 U.S. at 427, 111 S. Ct. at 1906.

Acco rdi ngly, the acceptance of jurors in the face of “pretrial publicity and in other areas of inquiry that might tend to show juror bias” is entrusted to the discretion of the trial court.4 By our count, 24 prospect ive jurors had he

ard or read newspaper art icles about t

he case, an d seven had heard or read nothing. -10- Id .; Cazes , 875 S.W.2d at 262. Giv en this deference, a “trial court’s findings of juror impartiality ma y be overturn ed only for ‘manifest error.’” Cazes , 875 S.W.2d at 262; see also Cauthern , 967 S.W.2d at 749.

In sum mar y, individual, sequestered voir dire is not required unl

ess the case

is highly publicized and there e xis ts a significant p ossibility tha

t prospective jur

ors have been expo

sed to prejudicial informatio

n. Smith , 993 S.W.2d at 29; Cauthern , 967 S.W.2d at 749. Otherwise, “prospective jurors who have been exposed to information which will be dev elo ped at trial are acceptable, if the court believes their claims of impartiality.” Mann , 959 S.W.2d at 532.

We have reviewed the transcript of the jury selection phase of the tria l. Althou gh several prospective juro

rs indicated an a

wareness of the

case as a result

of local newspap

er articles,

4 the record reflec

ts a benign inter

est in the case. Of

those who had rea

d or heard about t

he case, only one indicatedthat he may have formed some opinion about th

e case, and this ju

ror was excused vi

a peremptory

challenge. One juror was excused after he expressed an opinion about the petitioner’s guilt because a warr

ant had been issue

d, and as many

as f ive potential jurors were excused by the court when they

indicated personal connections to witnesses or parties in the case. However, there were no indications thatstr ong feelings or opinions about the case had developed among the prospective jurors or that the newspaper reports were sens ati onal or provocative. Moreover, the record does not reflect theamount, nature, extent, depth, specificity, or the prejudicial potential of the pretrial media coverage of the case.

In short, the r

ecord is devoid

of any proo

f which supports

a claim that counsel was ineffectivein failing to pose more probing questions to the jurors or in failing to ask the court for individual, sequestered voir dire . Couns el cann ot be said to have deficiently performed in not seeking individual voir

dire when neither the record at trial nor the post-conviction record illustrates that the case was “hi

ghly public

ized” or that any

significant possibilit

y of exposure to prejudicial information existed.

Furthermore, the record indicates no basis for the tr ial court to

grant individual voir dire and no basis on appeal for finding an abuse of discretion. Hence, the petitioner has demonstratedno prejudice in the failure to move for individual voir dire . Also, the record ref lects no basis for concluding that the petitioner was prejudiced when counsel failed to ask more probing questions about the prospective jurors’ pretrial information.

Fin all y, we note that counsel’s concern that the responses to more probing questions might have tainted the other prospective jurors is not itself a basis

for the trial court ordering individual voir dire . Without a showing of the predicate “significant pos sib ility” of prejudicial impact, the trial court was under no mandate to grant such a request.5 The petitioner argued that the victim’ s former status as a cri me-fami ly fi gure ref lected n egative ly upon him, although it

is not clea

r whether th

is refl ection stems

from the fact

that he and t

he victim both

had southern European surnames, o r whether it was b ecause the v ictim had be en married to the petitione r’s aunt. -11- The petitioner has fa

iled to establish ine

ffective assista

nce of counsel in

these issues.
B. Ineffective Assistance of Counsel - - Character Evidence.

The petitioner argues that trial counsel was ineffective because he fa iled to cha llenge evidence which impugned th e petitioner’s ch

aracter by

esta b lishing the petitioner’s previousincarceration

in New York with Vi

to Licari, 5 and the petitioner’s participation in arson and check kit ing. Add iti ona lly, the petitioner is aggrieved that trial counsel sponsored evidence of the New York incarceration. He claims that the use of all of the above evidence w as barred b y Tennessee Rules of Evidence 402, 403, and 404(b

). He acknowled

ges t hat he ma

y have been vulnerable

to witness impeach

ment via the use of the prior felony conviction of possession of stolen property which r es ulted in the New York imprisonment, but he argues that the state-sponsored character evidence was introduced before he decided to testify. F urthermore, the petitioner complains that

the state exploited t

he prejudicial na

ture of this evide

nce during its cl

osing argumen

t.
Evidence that is not r

elevant is inadmissible. Tenn. R. Evid. 402. Other wise admissible

relevant evidence

may be inadm

issible “if its probative value is substantially outweighed by the danger of u

nfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ten

n. R. Evid. 403. Moreover, character evidence to prove “a ction in con formity with the character or trait on a part icu lar occa sio n” i s gen eral ly in adm iss ibl e. T enn . R. Evi d. 4 04( a). M ore s peci fic all y,

[e]vidence of other

crimes, wrongs , or acts is not admissible to prove the character of a

person in order to

show action in conf

ormity with the character trait. It may, howe ver, beadmissible for other purposes. The conditions w

hich must be satisfied before allowing such evidence are: (1) The court upon request must hold a hearing outside the jury’s presence; (2) The court must determi ne that a material issue exists other than conduct

conforming with a

character tra

it and must upon requ

est state on th e record the m aterial is sue, the rul ing, andthe reasons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair pre judice. Tenn. R. Evid. 404(b).-12- There is no question of fact about the content of the te stimony of Licari and other wi t nesses. The transcript of the trial testimony was exhibited to the post-conviction record. Therefore, the trial court was not required to find facts re garding thecontent of trial testimony concerning the petitioner’s i ncarceration a

nd his alleged a

rson and check-

kiting activities . Also, it is not open to question that trial counsel did not make Rule 404(b) objections to the state’ s presentation of this evidence. Accordingly, our review of w hether cou nsel was ineffec tive is de
novo
. See State v. Burns , 6 S.W. 3d 453, 461, (Tenn. 1999).

An analysis of the effectiveness of trial counsel in h andlin g the character evidence issues requires some understanding of the sequence and timing of the presentation of the character evidence components. TBI AgentsThomas Lewis and Christopher Thomas Carpenter investigated the homicide and testified early in the state’s case-in-chief. On direc t examination, Agent Lewis read to the jury the defendant’s unredacted pretrial statements which include d info rmation that the victim’ s re al name was Piero Arthur Frapollo and the victim was a twenty-y ear member of the Colombo crime family

who left New York

and came to

Tennessee under the auspices of the federal witness relocation program. On cross-examination of Agent Carpenter, defense counsel prompted the witness to read an “agent’s note,” which is a memorandum an agent puts

in his investigation file. Along with information favorable to the petitioner, the agent’s note imparted to the jury information that the petitioner had been previously incarcerated with L icari.
Vito Licari testif

ie d i mmediately after Agent Carpenter. On the state’s dire ct examination, Licari acknowledged his own criminal history but mentioned that

he ha d been incarcerated

in New York with the petitioner and t estified in some detail about the petitioner’s involvement in arson and check kiting.

In the petitioner’s case-in- chief, he presented evidence that Licari and the victim were involved in the check-kiting scheme. The petitioner’s fiancée testified that the petitioner had been incarcerated

with Licari in New York. The petitioner testified that he had been incarcerated in New York for ten months, tha

t Licari was a

cocaine user who carrie

d the HIV viru

s, and that the vict

im, alias Piero Arthur Frapollo, was relocated in Tennessee by the f ederal justice departme

nt. He denied inv olv eme nt i n th e ars on a nd c heck -ki tin g act ivi ty.

Add iti ona lly, the petitioner intr oduced evidence

of examples of his go od character traits and showed that he worked and sought g ainful employ

ment, attended ch

urch, supported h

is fiancée and her children, and served as Good Samaritan to Lica ri and the victim. (1)
Trial counsel’s strategy ca l led for depicting the victim and Licari as unreformed criminals, while depicting the petitioner as a responsible citizen and family man. Implementing the strategy required showing the victim’s real name and that the victim was a criminal type who lived in Tennessee unde

r the federal wi

tness protection p

rogram. Eviden

ce of thisnature was rea

sonably promoted by the petitioner b ecause the issue of the pe titioner’s guilt r

ose or fell on the c

redibility-13-

of witnesses. Couns

el’s strategy

fostered confid

ence in the petitio

ner’s credibilit

y anddisparaged that of the victim

and Licari. We discern

no deficient per

formance in the t

actical choice

to use this evidence. (2)

Also, we find no prejudice in the jury’s hearing evidence of the petitioner’s previous incarceration

in New York. The petitioner testified at his trial, and facing impeachment via the New York conviction of

possession of

stolen property, he admitted the conviction on direct examination. Although the conviction could only be used against the petitioner for impeac hment purposes, see Tenn

. R. E vid. 609(a), the prejudicial impact of the evidence of the New York incarceration was effectively

diminished by the jury being informed of the c onviction un derlying the incarceration. To be sure, the petitioner argues that he did not elect to testify until after the state presented the bad character evide nce, bu t we find nothing in the record which suggests that his decision to testify emanated from anything other

than his desire to controvert Licari’s accusations about the murder. Thus, we see no prejudi

ce to the petitione

r as a result o f the jury hearing about the New York incarceration. (3)

The substantive use of the evidence of the petitioner’s alleged arson and check-kiting activities,however, requires a more complex analysis. In the absence of a

defense challenge on the basis of Rules 402, 403, or 404, Licari, a

s a state witness, i

njected these two

evidentiary

components into the case. Fir

st, we must determin

e whether the ev

idence was admis sible via Lica ri.
The state argues that the arson and check-kiting evidence is justified by Tennessee Rule of Evidence 404(

b), because, ra

th er than showing “action in conformity with [a] character trait,” the evidence was admissible for “other purposes.” See Tenn. R. Evid. 404(b). In this case, the state says the evidence of arson was admissible “to prove the source of the funds used to pay the defendant and Vito Licari for killing the victim,” and the evidence of check-kiting “was admissible to show the r

elationsh ip betwee n the part

ies.” We are u npersuaded that Rule 404(b)’s “other purposes” exception would hav

e provided a thre

shold for the admis sion of these two c omponents of proof, had counsel made proper objections. The only evidentiary importance of the fire insurance money seems to be that the insurance company in fact paid proceeds which pr ovided cash and enabled a murder-for-

hire scheme. Tha

t the murder had to

be delayed so

that the petitioner

could collect a debt owed him by the victim also may have bee n relevant. However, neither of these two bases for proving the flow of insurance proceeds required disclosure o f the pe titioner’s alleged participation in arson. Furthermore, we fail to see any relevance of the alleged check-kiting aspect of the petitioner’s and the victim’s relationship to the state’s theory of th e homicide. Thus,

we hold6 A proper, timely object ion should have re sulted in t he evidence being ex

cluded. We realize,

however, that the testimony im plicating the p etitioner in arso n and chec k kiti ng was a surprise to trial counsel, and some of the accusations were in jected be fore couns el had an o pportunity to object an d seek exc lusion. Nev ertheless, a mo tion to strike and to ask the court to gi ve cautionary, limit

ing instructions t

o the jury should hav e been we ll received. A lso, a motion for th e ordering of a mistrial wou ld have be en on po int. -14- that the evidence of the petition er’s alle ged arson and c heck-kiting wa

s inadmissible pursu

ant to Rule 404(b), as of the time Licari testified. 6

The conc lus ion that trial counsel could have taken steps to effectively exclude or limit the impact

of inadmis sible evid

ence doe s not end th

e inquiry into couns

el’s perf ormance. We must consider w het her counsel may be accredite d for determ ining that the evidenc e, though inadmissible

at the time it was presented, could have facilitated the trial strategy, or if not, that disclosure of the evidence was a necessary a nd justifiable risk of a worthy strategy. We reject out of hand any notion that evidence of the petitioner’s alleged arso n and check k iting per se advanced counsel’s strategy. However, we must ascertain whethe r counsel defi cie ntl y performed by acquiescing unreasonably or unnecessaril

y in the use of prejudicial evidence or whether the choice of strategy made inevitable the disclosure of the accusations that the petitioner burned a house for money and kited checks.

The inquiry into th

e inevitability

of this evidence is initially informed by the law of rebuttal and Tennessee Rules of Evidence 404 and 405. Competent e

vidence is generally admissible to explain, directly

reply to, or contradict material evidence introduced by the opposing party

. Nease
v. State , 592 S.W.2d 327, 331 (Tenn. Crim. App. 1979). If counsel reasonably f oresaw that the implementation of his s trate gy would le ad to the use of the

arson and check

-kiting accusa

tions in rebuttal, then a conscious decision not to challenge the evidence in the state’s case-in-chief

may well be a supportable tac

tic. Moreover, in

such a scenario, a negligent failure to challenge the evidence would have entailed no prejudice.

The petitioner opene

d the door to his own c

haracter trait

s f or ind ustry, devo

tion to his family, and general bonhomie. As explained above, he introduced evidence of specific instances of his admirable traits. The claim that the petitioner was the victim’s benefactor was perhaps belied byLic ari’s testimony of the arson arrangement, and the petitioner’s c laims that he was a wage
earning family

man would have be

en logically

countered by

the claim he was actively

involved in the arson and bank fraud. However, a logical connection to rebuttal evidence doe s notend the inquiry when the rebutta

l evidence would show specific instances of the bad character of the defendant.
To be sure, evidence of a “pertinent character trait” may be offered

by a crimi

nal defendant or “ by the prosecution to rebut the same. ” Tenn. R . Evid. 404(a)(1) (emphasis added). However, the Rul es l imi t th e us e of p osi tiv e cha ract er ev ide nce b y t he criminal defendant, or the state’s use of negative evidence to rebut the same to r eputatio n or opinion testimony via a “character” witness. SeeTen n. R . Ev id. 404 (a)( 1), 405 (b) . Inq uir y i nto “specific instances of conduct” may be made only when cross- examing the character witness, and extrinsic evidence of7 In fact, t he state t ook the opportunity

to cross-exami

ne these defens

e witnesses

on these issues

. The witnesses den ied knowle dge of the p etitioner’s involv ement in arso n or check -kiting.

We discern that the petitioner could have bee n impeached as a witness through cross-examination about activities t

o defraud banks and an insura nce com pany, pursuant to the impeachment through prior bad acts provisions of Tennessee Rul

e of Evidenc

e 608(b). In

fact, he was cros s-exami

ned abou t these issue s. However, he deni ed involvement i

n the arson and check

-kitin g, and the st

ate should have been

relegated to “taking

his answer.” T he state would not have been permitted to present extrinsic proof of t he prior bad acts, as it would have been permitted to do in the case of im peachm ent through p rior convic tions. Compare Tenn. R. Evid. 608(b) with Tenn. R Evid. 609(a)(1). -15- specific instances of the defendant’s misconduct is not permitted. N. Cohen, Tennessee Law of Evidence § 405.3, at 196 (3d ed. 1995). In a broad sense,someof the defense witnesses at trial may be viewed as ch aracte

r witnesses to the extent that they affirmed the petitioner’s traits of industry andbenevolence, and they were subject to cross-examination abou t their knowledge of the arson-forhire and the check-k

iting claims. 7 However, extrinsic evidence of these claims

would not have been admissible in rebuttal. If counsel assumed otherwise, he was in error.

That said, our inquiry into the adequacy of c ounsel’s performance does not end here. In applying the mandated objection standard to evaluate counsel’s performance, we must consider the benefits to the defense of a tactic of acquiescing in the use of incompetent state proof as a means of enabling the defense to rebut with favorable, but equally incompetent proof.
Tennessee has long recognized a “good-for-the-goose, g ood-for-the-gander

” rule that “if a party opens the door for the admission of incompetent evide

nce, he is in no plig

ht to complain that his adversary followed through the door thus opened; and this, although no objection was made in the first instance to the admission of such evidence.” Thomas v. State , 121 Tenn. 83, 87, 113 S.W. 1041, 1042, (1908) ; see also Garrison v. State , 163 Tenn. 108, 121, 40 S.W .2d 1009, 1013 (1931). As we have shown ab ove, the state pre

sented inadmissible

evidence through Licari, without objection, that

the petitioner burned a house and defrauded banks. Then, the petitioner in his case-inchief offered witnesses to testify to specific instances of the petitio ner’s g ood conduct, evidence which was itself inadmissible. SeeTenn. R. Evid. 405(a). Even though the state generally made no objection to the petitioner’s improper method of placinghis character in issue, the petitioner was in a position because of the Thomas rule to use his favorable specific- instance evidence, when otherwise his attempts to

show his good character would have been limited to opinion or reputation evidence. Id . Through this device, the petitioner presented evidence of his reform from crime by showing specific examples of his work ethic, fam ily v alu es, and ben efi cent nat ure. Und oub ted ly, the good conduct evidence promoted the petitioner’s strategy and, for all we know, may have given him his best chance for acquittal. To be sure, the strategy, as pla yed out through the tactics of trial counsel, had the potential for gain as well as loss. See Profit v. Waldron , 831 F. 2d1245, 1249 (5 th Cir. 1987). For this reason, we defer to both counsel’s choi ces of strate gy and the tactics he employed to implement

the strategy

. As a result, we ho

ld that counsel did not deficiently perform with respect to the

arson and check

kiting evidentia

ry issues.-16- Our inquiry, mercifully, is now at an end. Having fou

nd no deficiency

in counsel’s performance, we need

not address the prejudicial effect of the defense strategy or tactics. Henley , 960 S.W.2d at 580.
IV. CONCLUSION.

Acco rdi ngly, we conclude that the petitioner failed to show by clear

and convincing evidence that he received the ineffective assistance of trial counsel, and we affirm the judgment of the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE