Dellinger v. State, No. E2005-01485-CCA-R3-PD (Tenn. Crim. App. 8/28/2007)
| Decision Date | 28 August 2007 |
| Docket Number | No. E2005-01485-CCA-R3-PD.,E2005-01485-CCA-R3-PD. |
| Parties | JAMES A. DELLINGER v. STATE OF TENNESSEE. |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
Donald E. Dawson and Catherine Y. Brockenborough, Nashville, Tennessee, for the appellant, James A. Dellinger.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Michael L. Flynn, District Attorney General; Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.
Joseph M. Tipton, P.J., delivered the opinion of the court, in which David H. Welles and James Curwood Witt, Jr., JJ., joined.
The petitioner, James A. Dellinger, appeals as of right from the order of the Blount County Circuit Court denying his petition for post-conviction relief from his 1992 conviction for first degree murder and resulting death sentence. The petitioner claims that (1) this court should review the trial court's opinion in its entirety under a purely de novo standard of review; (2) an incorrect and unconstitutional burden of proof has been applied to the petitioner's claims of ineffective assistance of counsel; (3) his conviction and death sentence violate his rights to due process because he is actually innocent of the conviction offense; (4) the state withheld exculpatory information at the trial; (5) counsel provided ineffective assistance to him at trial and on appeal;(6) the petitioner was not afforded a full and fair hearing of his post-conviction petition in violation of his due process rights; (7) the death sentence is unconstitutional because it infringes upon the petitioner's fundamental right to life; (8) the aggravating factor used in support of the death sentence was not included in the indictment and returned by the grand jury; (9) Tennessee's death sentence is unconstitutional because prosecutors are given absolute discretion to pursue or to forego the pursuit of the death sentence in each case; (10) execution by lethal injection violates the principles against cruel and unusual punishment; (11) the petitioner's conviction and death sentence are in violation of international law; and (12) Tennessee's death penalty scheme is unconstitutional. We conclude that no error exists, and we affirm the judgment of the trial court.
In April 1982, the petitioner was convicted of the premeditated first degree murder of Tommy Griffin. The state filed notice of intent to seek the death penalty based on the single aggravating circumstance that the defendant was previously convicted of a felony involving violence. See T.C.A. § 39-13-204(i)(2). At the sentencing phase, the jury found that the prior violent felony aggravating circumstance was established and outweighed any mitigating circumstances beyond a reasonable doubt. The jury sentenced the petitioner to death. The petitioner's nephew and co-defendant, Gary Wayne Sutton, was also convicted and sentenced to death. On appeal, the Tennessee Supreme Court affirmed the judgment. See State v. Dellinger, 79 S.W.3d 458 (Tenn. 2002), cert. denied sub nom Dellinger v. Tennessee, 537 U.S.1090, 123 S. Ct. 695 (2002).
As set forth in our supreme court's opinion on direct appeal, the proof at the petitioner's trial established the following facts surrounding the murder of Tommy Griffin:
On the afternoon of February 21, 1992, Dellinger, Sutton, and Griffin spent several hours at Howie's Hideaway Lounge (Howie's) on Highway 321 in Maryville, Tennessee. The three men drank beer and played pool until approximately 7:00 p.m., when they left the bar in a dark-blue Camaro. Witnesses testified that there was no evidence of hostility among the men while they were in the bar.
Around 7:00 p.m. Cynthia and Kenneth Walker were traveling north on Alcoa Highway near the Hunt Road exit. They observed three men who appeared to be fighting in a dark-colored Camaro on the side of the road. Two of the men were standing outside of the car attempting to forcibly remove the third man from the back seat. Kenneth Walker used his portable radio to report the incident to the dispatcher for Rural Metro Blount County Ambulance.
Sharon Davis, who was also driving north on Alcoa Highway around the same time, observed a shirtless and shoeless man stumbling down the side of the road near the Hunt Road exit. When Davis passed the same area about thirty or forty minutes later, she saw two men standing outside of a dark-colored Camaro on the side of the road. They appeared to be looking for something.
At 7:11 p.m. Sandra Hicks, a dispatcher for Blount County 911, received a complaint about an altercation involving three men in a dark Camaro at the intersection of Alcoa Highway and Hunt Road. Officer Steve Brooks with the Alcoa Police Department was dispatched to the scene. While making an unrelated traffic stop, Officer Brooks noticed a vehicle with flashing headlights parked on the side of Hunt Road. The officer sent his backup, Officer Drew Roberts, to investigate. Officer Roberts found two men, not Dellinger and Sutton, standing next to a pickup truck. A shirtless man sitting on the bed of the truck identified himself as Griffin. Griffin told the officer that his friends had put him out of a car. Griffin would not identify his friends or tell the officer what had happened. Officer Roberts arrested Griffin for public intoxication. Griffin was booked at the Blount County jail at 7:40 p.m. Dellinger arrived about forty-five minutes to an hour later to ask about Griffin's release. Sergeant Ray Herron explained to Dellinger that department policy required a minimum four-hour detention for public intoxication and advised him to come back at 10:30 or 11:00 p.m.
Alvin Henry was a resident of Bluff Heights Road, where Dellinger and Griffin both lived. At approximately 9:00 p.m., Henry looked out of his trailer window and saw Dellinger's white Dodge pickup truck. Henry saw someone enter the passenger side of the truck. The truck drove up the road and pulled into Dellinger's driveway. Henry then noticed fire shooting from Griffin's trailer down the road. Henry's wife reported the fire to the 911 operator at 9:02 p.m. Arson investigator Gary Clabo concluded that the fire was set intentionally with the use of a liquid-type accelerant and an open flame such as a match, candle, or cigarette lighter.
Jennifer Branam, Griffin's niece, ran to Dellinger's trailer when she learned that Griffin's trailer was on fire. Just as Dellinger's wife was telling Jennifer that Dellinger was not home, Dellinger and Sutton walked down the hall from the living room. The two men were still wearing their jackets, and their pants were wet up to the knees. Jennifer asked them if Griffin was in his burning trailer, and Sutton told her that Griffin was in Blount County with a girl. When Jennifer asked the men to accompany her to the trailer, Dellinger responded that they were already in enough trouble.
After returning home, Jennifer looked out the window and saw Dellinger remove an object wrapped in a sheet from his truck and place it into the back of his wife's Oldsmobile. Jennifer testified that the object resembled a shotgun. Herman Lewis, a relative of Jennifer, also observed Dellinger moving an object from his truck to his wife's car shortly after 10:00 p.m. Dellinger and Sutton then left in the Oldsmobile.
At around 11:25 p.m. Dellinger and Sutton returned to the Blount County jail. Dellinger paid a cash bond for Griffin. Officers in the jail lobby overheard one of the defendants tell Griffin that they needed to get him back to Sevier County. At 11:55 p.m. Jason McDonald and his mother, Brenda McKeehan, heard two gunshots fired from an area on the Little River in Blount County called the Blue Hole. The Blue Hole is approximately five hundred yards down the hill from McDonald's residence.
The next morning, February 22, Jennifer Branam saw Dellinger leave his trailer, remove the object he had placed in his wife's car the night before, and place the object under his trailer.
Around noon on February 22, Connie Branam, Jennifer's mother and Griffin's sister, informed her daughter Sandy of her intent to go to Blount County to look for Griffin. At about 2:00 p.m., Connie Branam went to Jerry Sullivan's grocery store in Townsend asking if anyone had seen her brother. Sullivan then saw Branam speaking with two men in a white Dodge pickup truck in the grocery store parking lot.
Later that afternoon, Connie Branam accompanied Dellinger and Sutton to Howie's. Branam told Jamie Carr, who worked as the afternoon bartender at Howie's, that she was looking for her brother. Responding to Dellinger's questioning, Carr repeatedly told them that she remembered Dellinger, Sutton, and Griffin from the night before. When Dellinger asked if Carr remembered with whom Griffin left, she responded that they were still at the bar when her shift ended. Dellinger told Carr that they last saw Griffin with a short, dark-haired, ugly woman. When Carr's shift ended at 5:00 p.m. on February 22, Branam, Dellinger, and Sutton were still drinking beer in the bar.
Terry Lilly Newman worked the shift following Carr's at Howie's. When she approached Branam, Dellinger, and Sutton to ask if they needed anything, Dellinger asked Newman if she remembered them from the night before. Newman responded that she recalled seeing Dellinger and Sutton with another man drinking beer and playing pool. Branam explained that she was looking for her brother and asked with whom he had left the bar. Newman became confused because she knew that Griffin had left with Dellinger and Sutton. Dellinger asked Newman if she remembered them returning to Howie's after they bailed Griffin out of jail, but Newman...
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