Dillon v. Commonwealth

Decision Date29 October 2015
Docket Number2013–SC–000696–MR
Parties Lennie J. Dillon, Appellant v. Commonwealth of Kentucky, Appellee
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT: Mollie Mattingly, Assistant Public Advocate, Department of Public Advocacy, 200 Fair Oaks Lane, Suite 500, Frankfort, Kentucky 40601

COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Jeanne Deborah Anderson, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, 1024 Capital Center Drive, Frankfort, Kentucky 40601–8204

OPINION OF THE COURT BY JUSTICE NOBLE

The Appellant, Lennie J. Dillon, was convicted of murder for shooting and killing his girlfriend, Amy Dennison, and was sentenced to forty years' imprisonment. On appeal he alleges numerous errors, including that police illegally obtained incriminating statements from him and that the prosecutor improperly discussed his own interactions with a witness to a supposed jailhouse confession by Dillon in an attempt to impeach that witness. Finding no reversible error, this Court affirms Dillon's conviction.

I. Background

Dennison was last seen before the shooting by an attendant at a local full-service gas station around 1:00 p.m. on the day of the killing, February 29, 2012. Dennison and Dillon were in Dennison's van. Dennison, who was driving, asked the attendant for a pack of cigarettes and the remainder of $30 in gas. Neither Dennison nor Dillon exited the van, and neither was talking to the other, which the attendant noted was unusual. The attendant did not see a gun or any indication that Dennison was being held against her will or otherwise needed help.

What happened next is the subject of dispute.

Dillon told a story of an accidental or self-defense shooting. He claimed that Dennison drove them to the Cedar Grove Cemetery, a place of significance because they used to meet there, and pulled a .38–caliber pistol on him. He believed Dennison was going to shoot him, and they struggled over the gun. Dillon claimed only to have been trying to get the gun away from Dennison, but the gun went off, shooting Dennison in the abdomen above her right hip. Dillon claimed that she nevertheless continued trying to point the gun at him. As the struggle continued, Dennison was shot again, this time in the right side of her head, and she stopped moving. Dillon claimed that he took her out of the front seat and put her on the floor in the back where he tried to stop her head from bleeding, checked for a pulse, and feeling no pulse, tried to start CPR.

According to Dillon, he then got into the driver's seat, intending to drive to a "special place" where he and his brothers had played as children and where his dogs were buried. He claimed that he intended to kill himself there. The van, however, got stuck in the mud before he could get to his destination. He claimed that he got out of the van and walked into the woods, crying and upset. He sat down and smoked two cigarettes. He then pulled out the gun, put the barrel in his mouth, and pulled the trigger. He claimed that the next thing he remembered was waking up in the hospital a month later.

The Commonwealth offered a very different account of what happened, albeit through circumstantial proof. The Commonwealth's theory of the case was that Dillon had brought the gun and had intentionally killed Dennison. That theory was supported by, among other things, the fact that Dennison was eventually found lying face down in the back of the van; blood-spatter evidence in the back of the van and under the chairs indicating that the head shot happened there; and the fact that there was only blood transfer in the driver's seat with no blood spatter on the driver-side door or window. From this, the Commonwealth argued that only two conclusions could be reached: either Dillon placed Dennison face down in the back of the van and shot her, or he followed her to the back of the van, where she then fell down and he shot her.

Police were alerted to the incident around 2:00 p.m. that day.1 Several Kentucky State Police and local sheriffs units went to the scene where they found Dennison's van. One of the state troopers, Craig Engler, saw a woman lying on the floor in the van with her head toward the back and feet toward the front. The van doors were locked, and Trooper Engler broke the driver's seat window to gain access to the van. Once the doors were open, the officers found that the woman was dead. She had two gunshot wounds

, but no gun was found in the van. The officers had been told that the woman had been with another person earlier in the day, and they suspected he might still be nearby.

They called for a K–9 unit to help search. Once the dog arrived, they tracked about a mile into the woods, where they found Dillon. They had been on the scene at least 30 to 40 minutes and possibly as long as an hour before finding him. Dillon was lying on the ground with the .38–caliber pistol near his hand, which was opening and closing repeatedly, possibly reflexively. The officers ordered him to move his hand away from the gun, but he did not respond in any way. One of the officers moved behind Dillon and announced that he appeared to have a gunshot wound

in the top of his head. The officers then approached Dillon, with one securing the gun, and another handcuffing Dillon with his hands in front of him.

The officer who handcuffed Dillon, Kentucky State Trooper Brandon McPherson, then searched Dillon's body and pockets for weapons, finding only a wallet, a prescription bottle of hydrocodone with Dennison's name on it, a pocket knife, and other personal items. He observed what appeared to be a gunshot entry wound

to the roof of Dillon's mouth and an exit wound out the top of his head. Trooper McPherson also sat Dillon up because the man appeared to be choking or gurgling on the blood from the wound in his mouth. Because of the nature of Dillon's wound, McPherson called for both emergency medical services and Life Flight, a helicopter ambulance. The trooper asked the man his name, and he mumbled, "Lennie Dillon." Dillon could not open his eyes because of substantial swelling.

Some time later, while waiting for emergency medical services to respond, the trooper gave Dillon his Miranda warnings and asked whether he understood them. Dillon did not speak at that point or at any other point afterward while he was being questioned, but he did nod yes. Since Dillon had the gunshot wound

in the roof of his mouth, which was full of blood and tissue, the trooper asked him a series of yes/no questions as follows:

Q: Did you shoot your girlfriend?
A: [nod yes]
Q: Did you shoot yourself?
A: [nod yes]
Q: Are you wanting to die?
A: [nod yes]
Q: Is your girlfriend Amy Dennison?
A: [nod yes]
Q: Is the van that she's in your van?
A: [shake no]
Q: Were y'all fighting?
A: [nod yes]

Trooper McPherson did not see or hear anyone else talk with Dillon. On cross-examination, he stated that he was not worried about Dillon's mental capacity at that time because he was answering questions coherently and immediately, though he admitted that he was fairly sure that the man had a brain injury

. He also admitted that he had had a digital-audio recorder and a smart phone with video recording capability but that he did not record the questioning. Two other officers testified to the contents of this conversation; they recalled it the same as Trooper McPherson did.

About 40 minutes after being called, emergency services arrived and took Dillon out to the road, from where he was flown to a hospital in Evansville, Indiana, where he spent the next four months.

Dillon was indicted for murder and went to trial in September 2013. The Commonwealth presented testimony from the gas-station attendant, the officers noted above, forensic personnel, and others, not all of whose testimony is recounted below. The attendant and officers testified to the events described above.

The medical examiner testified that the gunshot wounds

to Dennison were both contact wounds. The gunshot wound above the right hip had a corresponding exit wound in her back. Photos admitted into evidence show that the head shot had entered approximately two inches above and behind her right ear and exited approximately two inches above her left ear.

Other forensics personnel testified that the first gunshot to Dennison, the one above her hip, had been received while she was sitting in the driver's seat, and that the blood spatter droplets in the back of the van indicated that the head shot had been fired there when she was face down on or near the floor with the shooter over her. Only one bullet was found—in the back of the van—and it had been fired from the pistol. Six empty shell-casings were found in the pistol. Another forensics witness testified that no blood could be found on the van's driver's side seat belt, overhead light, or the liner above the chair or top of the head rest.

Another police officer testified about responding to a domestic violence incident in December 2011 at Dennison's house. According to the officer, Dennison told him that Dillon struck her, and she had scratches behind her ear and on her chest. Dillon was charged with fourth-degree assault and criminal mischief, pleaded guilty to the assault on February 13, 2012, and received a 10–day sentence.

Dennison's niece, Kasey Manning, testified about being asked to remove pictures of Dillon from her Facebook page in January 2012. She also testified that Dennison had been planning to move to Indiana because she was afraid Dillon would kill her, and that she had owned a 9–mm handgun but had gotten rid of it because she did not want it used against her.

Another witness, a friend of Dennison's, testified that on January 1, 2012, she had gone to stay with Dennison, and that Dennison had been bruised, had stitches, and was incoherent half the time. She also testified about visiting Dennison and Dillon with her husband on February 28, 2012, recalling that Dennison shushed her when she began to...

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