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Barry Wayne Dunham v. State of Tennessee
Citation: Not availableDocket: M2010-02586-CCA-R3-PC
Court: Court of Criminal Appeals of Tennessee; February 8, 2012; Tennessee; State Appellate Court
Original Court Document: View Document
Barry Wayne Dunham appeals the denial of post-conviction relief from his conviction for first-degree murder by the Macon County Criminal Court, where he is serving a life sentence. He argues ineffective assistance of counsel. The court affirms the trial court's judgment. Dunham was initially charged with premeditated first-degree murder for the shooting death of his father, Clinton Dunham, on April 23, 1997. After pleading guilty to second-degree murder in 1998, he was granted post-conviction relief due to an illegal sentence regarding parole eligibility, leading to a retrial. In the retrial, evidence presented by the State indicated that Dunham killed his father with a rifle while the victim was either asleep or unconscious. Dunham had worn gloves to avoid leaving fingerprints and took the rifle from the victim’s home. He then traveled to Kentucky, returning to "discover" the body and call 9-1-1. Dunham's defense claimed self-defense, citing his father's history of violence and alcoholism, and argued that his own intoxication and health issues impaired his ability to premeditate the act. The prosecution's evidence included Dunham's confession and details of the victim's position at the crime scene, suggesting he was not actively engaged in a confrontation at the time of the shooting. The victim's blood-alcohol level was reported at .12%, and he had drugs in his system at the time of death. The court upheld the conviction based on the evidence and the defense's unsuccessful attempts to establish self-defense. The defendant last saw the victim, who was asleep, on the evening of April 22, 1997, before spending the night with his girlfriend in Kentucky. During an investigation, it was revealed that the victim was a heavy drinker with a violent reputation. On May 5, 1997, TBI Special Agent Jason Locke interviewed the defendant, who recounted spending the morning of April 23, 1997, with the victim and another individual, discussing the victim's intent to burn his house for insurance money. The defendant also claimed the victim confessed to having killed Newberry and attempting to shoot Newberry’s wife due to a theft of chainsaws. In a subsequent interview on May 6, 1997, the defendant confessed to shooting the victim after learning of the victim's plans to kill two individuals to prevent their testimony against him in a murder trial. The defendant detailed the events leading to the shooting, including discussions about his cocaine use, the victim's threats, and his own emotional turmoil regarding the victim's intentions. He described his actions leading up to the murder, including retrieving a rifle, ensuring no fingerprints were left, and shooting the victim while he was asleep. Afterward, he left the scene, returned home, and later called his sister and 911. Sheriff Joe Ferguson testified that the defendant admitted to killing his father during the interview. Sheriff Ferguson testified that he witnessed the defendant admit to his sister that he killed their father, stating, "Yes, I did." At the time of his death, the victim was under indictment for the murder of Joe Frank Newberry. The defendant explained to his sister that he committed the crime "because it was never going to stop." Timothy Gravens, the defendant's half-brother, described a tumultuous relationship between the defendant and the victim, noting threats made by the victim against the defendant and a history of mutual hostility. Gravens also recounted the victim's abusive behavior and violent tendencies, including threats to burn the defendant's car and intentions to harm witnesses to his own criminal actions. Roger Dale Denham, the victim's brother, testified that the defendant expressed his frustration with the victim, who had a reputation for violence, particularly when drinking. Denham recounted incidents showcasing the victim's aggressive behavior, including shooting a jukebox and threatening his girlfriend. Donna Trisdale, the defendant’s sister, corroborated the poor relationship between the victim and the defendant, stating that the victim was sober only about half the time and that he had expressed intentions to kill Newberry due to theft. Sandy Dugan, the defendant's younger sister, described the victim's relationship with the defendant as generally good, tainted by the victim's frequent drunkenness, which led to aggressive behavior. She recounted an incident where the victim fired a gun in her presence and mentioned his prior plans to kill Newberry and dispose of his body. After the murder, the victim threatened to kill witnesses Francis Newberry and James Lyons. Dugan testified that the defendant experienced a severe stroke in September 1996, which paralyzed him and impaired his ability to speak, walk, and care for himself. Although he partially recovered, he was not the same afterward. On April 23, 1997, the victim called Dugan, instructing her to bring the defendant to his house, where he was intoxicated. The defendant later confessed to Dugan about killing the victim, insisting it was necessary to stop ongoing issues. Dugan expressed understanding of the defendant's motivations, reflecting on the negative impact of the victim’s behavior on their lives. The defendant described his relationship with the victim as positive when sober but tumultuous when drinking, citing an instance where the victim fired a gun at him after a disagreement. He corroborated Dugan's account of the victim firing at her as well. After his stroke, the victim belittled the defendant during his recovery. The defendant recounted how the victim had killed Newberry, detailing the shooting events and the victim's plans to eliminate James Lyons and Mrs. Newberry, as well as retrieving buried dynamite for further plans. The defendant admitted to consuming morphine and approximately half a gallon of whiskey prior to the incident. He claimed he intended to retrieve dynamite but instead entered the victim's house, picked up a firearm, and shot the victim out of fear after the victim allegedly threatened to leave no witnesses. The defendant acknowledged the victim's violent history, including previous shootings. During cross-examination, he denied the victim would have forced him out for cocaine use and refuted claims that he premeditated the murder or staged the crime scene. He explained the presence of ejected shells by stating the gun misfired initially due to a lack of a bullet in the chamber. The defendant asserted he did not aim for the victim's head when the gun discharged, attributing his actions to severe brain damage from a prior stroke and asserting he had no conscious intent to kill. Witnesses, including Francis Newberry, recounted the victim's violent behavior, with detailed accounts of threats and assaults by the victim. Dr. Pam Auble provided expert testimony diagnosing the defendant with dementia due to his stroke and alcoholism, concluding these impairments hindered his ability for reflection and judgment during the offense. Dr. Keith Caruso, a forensic psychiatrist, testified regarding the defendant's mental health, diagnosing him with multiple conditions, including anxiety disorder NOS, dementia due to stroke, chronic alcohol abuse, and alcohol intoxication at the time of the offense. Caruso noted that the anxiety disorder led the defendant to misperceive threats, while dementia impaired his reasoning and planning abilities. He suggested that, during the offense, the defendant was influenced by strong emotions, although he acknowledged the possibility of premeditated action. The Petitioner sought post-conviction relief, claiming ineffective assistance of counsel for not pursuing a motion to suppress statements and for the limited use of expert witnesses. During the hearing, the forty-two-year-old Petitioner recounted his severe disabilities following a stroke in 1996, which caused cognitive and physical impairments. He admitted to daily alcohol consumption and drug use around the time he gave statements to law enforcement. The Petitioner described being pressured by agents to confess after failing a polygraph test, stating that he lacked clarity of thought during that time. After his arrest and subsequent guilty plea to second-degree murder, which was later vacated due to a sentencing error, the Petitioner and his trial counsel discussed preparations for trial. He claimed there was no discussion about filing a motion to suppress his statements or the implications of their admission at trial. The Petitioner also mentioned that he did not object to the statements being presented in court and relied on his counsel for decisions regarding witness testimony. He expressed a preference not to testify but was instructed by counsel to do so shortly before trial. Throughout this period, he continued to use alcohol and drugs while out on bond. The Petitioner provided testimony regarding his interactions with defense experts Dr. Ann Goetting, Dr. Pamela Auble, and Dr. Keith Caruso. He met with Dr. Caruso for only thirty to forty-five minutes, feeling this was insufficient to cover crucial details, and stated he was not consulted by his trial counsel regarding Dr. Caruso's expected testimony. In contrast, he met with Dr. Goetting several times, while he believed he met Dr. Auble three times, who assessed his IQ at 75, categorizing it as 'borderline retarded.' The Petitioner reported having a good relationship with his public defender, Tom Bilbrey, but only met with him approximately once every three months from early 2001 until February 2003. He acknowledged that cognitive impairments from a prior stroke and substance abuse influenced his mental state, although he felt he had improved since 1996. During cross-examination, he confirmed his trial took place in 2003, six years post-stroke, and admitted to initially pleading guilty, which was later set aside due to lack of proper sentencing advice. He stated he discussed his father's death with his attorneys but did not remember denying involvement. He claimed they did not extensively cover his testimony, and he struggled to recall various details, including his own statements and trial evidence related to the crime. The Petitioner was uncertain about his counsel's actions, including whether motions were filed, and denied knowledge of a motion to suppress the 9-1-1 recording. He acknowledged ongoing memory issues but claimed there were negotiations for a plea deal that he misunderstood regarding the percentage of time to be served. His attorney, Tom Bilbrey, confirmed his appointment following post-conviction relief and his experience in handling first-degree murder cases. Mr. Bilbrey indicated uncertainty about his role as the lead attorney on the Petitioner’s case, although he acknowledged being local and preparing for trial with the Petitioner. He noted that the public defender’s investigator likely had more interactions with the Petitioner than he did. Bilbrey had known the Petitioner since childhood and described him as cooperative and engaged in his defense. He confirmed that no motion to suppress the Petitioner’s statements was filed or discussed at trial, despite the statements being damaging. During the trial, the Petitioner acknowledged in his statements that he had killed his father, although the defense strategy revolved around claims of self-defense and diminished mental capacity due to a stroke. Bilbrey noted that the Petitioner wished to testify but deviated from earlier statements regarding key facts of the incident. He portrayed the victim as a violent individual, emphasizing that the Petitioner lived in fear and had been 'victimized' by him. Bilbrey speculated that had the statements been suppressed, the trial might not have occurred, but he was unsure. He acknowledged the Petitioner’s limited education and IQ, stating he believed the Petitioner understood their discussions and did not recall concerns regarding the Petitioner’s ability to waive his rights. Bilbrey mentioned several pretrial motions, but could not remember specifics, including whether a motion to suppress a 9-1-1 recording was argued. He explained that he sometimes found it advantageous to admit a defendant's statements in murder cases. He counseled clients on the implications of testifying without directing their decisions. Additionally, he argued for the admission of Dr. Goetting’s testimony related to spousal abuse, expressing disagreement with the trial judge’s ruling against it, a view shared by an appellate judge during the Petitioner’s appeal. Dr. Auble’s testimony was also noted as favorable to the defense. Dr. Caruso's testimony underwent a notable shift from direct to cross-examination, initially indicating a lack of premeditation but later suggesting the possibility of premeditation after being presented with a 9-1-1 recording. This change disappointed Mr. Bilbrey, who, along with co-counsel, had previously met with Dr. Caruso to ensure consistency with his direct testimony. Although Mr. Bilbrey was unsure if Dr. Caruso had access to the 9-1-1 recording prior to trial, he noted that the Petitioner had met with Dr. Caruso and likely provided similar factual information. Mr. Bilbrey expressed uncertainty about the Petitioner’s testimony differing from his prior statements, particularly regarding the gun malfunction and the events of the crime night. During cross-examination, Mr. Bilbrey acknowledged filing around sixteen motions for the defense and met with all three expert witnesses prior to trial. He stated Dr. Caruso showed no signs of wavering on diminished capacity or lack of premeditation at that time. The trial court concluded that the defense’s strategy was centered on self-defense and that failing to pursue a motion to suppress the Petitioner’s pretrial statements was a strategic decision rather than an ineffective omission. The court determined that the Petitioner did not demonstrate a reasonable probability that filing such a motion would have altered the trial's outcome. Furthermore, the court found that the unexpected exclusion of Dr. Goetting’s testimony and Dr. Caruso's unfavorable testimony for the defense were typical occurrences in trials and did not reflect poorly on the attorneys' competence. The court noted Mr. Bilbrey’s long-standing familiarity with the Petitioner, who was cooperative in his defense. Ultimately, the trial court denied relief, and the Petitioner appealed, arguing ineffective assistance of counsel for not filing a motion to suppress his pretrial statements. The Petitioner alleges ineffective assistance of counsel based on three grounds: insufficient use of expert witnesses, failure to provide expert proof regarding lack of mens rea for first-degree murder, and neglecting to file a motion to suppress his pretrial statements. The State argues that the trial court correctly found the Petitioner did not substantiate these claims. In post-conviction proceedings, the burden rests on the petitioner to demonstrate grounds for relief by clear and convincing evidence, as per T.C.A. 40-30-110(f). The appellate court is bound by the trial court’s factual findings unless the evidence strongly contradicts them. For claims of ineffective assistance of counsel, the Petitioner must satisfy the two-pronged Strickland test: proving that counsel's performance was deficient and that this deficiency was prejudicial, meaning the outcome would have likely changed but for the errors. Performance is evaluated against an objective standard of reasonableness. Furthermore, the assessment of counsel's performance requires considering the context of their decisions without the influence of hindsight. The trial strategy, even if unsuccessful, does not alone indicate ineffective assistance, particularly if it was based on adequate preparation. In this case, trial counsel aimed to demonstrate self-defense and presented evidence of the victim's violent character, rather than disputing the act of killing itself. The court emphasized that effective counsel must make informed strategic choices, and failure to pursue certain motions does not automatically constitute ineffective assistance if aligned with a broader defense strategy. The Petitioner’s pretrial statements revealed that the victim had a violent history, including the murder of a man over stolen chainsaws and intentions to kill witnesses. The Petitioner killed the victim after being informed of plans to eliminate two potential witnesses. His admissions indicated that his actions could be viewed through the lens of self-defense or defense of others. Despite evidence of the Petitioner’s cognitive impairments due to a stroke and substance use, there was no indication of significant impairment at the time of the incident. Testimony from Mr. Bilbrey suggested that there was no valid basis for a motion to suppress the Petitioner’s statements. The trial court found that trial counsel’s performance was adequate and that the Petitioner failed to demonstrate any prejudice. The Petitioner argued ineffective assistance of counsel regarding the use of expert witnesses Dr. Goetting and Dr. Caruso. The trial court had previously excluded Dr. Goetting’s testimony, and the majority opinion in the Petitioner’s direct appeal upheld this decision due to concerns over reliability and relevance. Bilbrey indicated he was unaware of any policy regarding the exclusion of sociologists as expert witnesses. The Petitioner did not provide alternative expert testimony to show prejudice from counsel’s reliance on Dr. Goetting. Regarding Dr. Caruso, Bilbrey confirmed he and the Petitioner met with him separately, but it was unclear if Dr. Caruso reviewed the 9-1-1 recording before trial. His concession during cross-examination about the possibility of premeditation came after hearing the recording and learning about inconsistencies in the Petitioner’s testimony. The evidence does not suggest Dr. Caruso had access to the 9-1-1 recording before trial, as his report did not list it among the materials provided. Consequently, the Petitioner is not entitled to relief on these claims. Dr. Caruso testified during cross-examination that he had not heard the 9-1-1 recording. Even if the failure of counsel to provide this recording to him were deemed deficient, the Petitioner’s own trial testimony undermined Dr. Caruso’s assessment. The Petitioner admitted to firing a rifle at his father, stating it misfired, and described actions that could indicate premeditation, which the jury could interpret as evidence of intent to kill. The court found no merit in the Petitioner’s claim regarding ineffective assistance of counsel concerning expert witnesses, as trial counsel had presented testimonies from Dr. Auble and Dr. Caruso and attempted to include Dr. Goetting's testimony. The trial court noted that the Petitioner failed to demonstrate availability of defense expert testimony that could negate mens rea for first-degree murder, and thus could not prove counsel's performance was deficient or that he was prejudiced by this alleged deficiency. Consequently, the Petitioner is not entitled to relief, and the trial court's judgment is affirmed.