Dellinger v. State

Citations: 279 S.W.3d 282; 2009 Tenn. LEXIS 252; 2009 WL 161284Docket: E2005-01485-SC-R11-PD

Court: Tennessee Supreme Court; January 22, 2009; Tennessee; State Supreme Court

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The Supreme Court of Tennessee is addressing the case of James A. Dellinger v. State of Tennessee, specifically focusing on whether a freestanding claim of actual innocence can be raised in an initial post-conviction relief petition under the Tennessee Post-Conviction Procedure Act. The court previously denied Dellinger's petition, which was affirmed by the Court of Criminal Appeals. The appellate court concluded that 1) a freestanding claim of actual innocence is not acceptable in an initial post-conviction petition; 2) the trial court correctly applied the burden of proof for Dellinger’s ineffective assistance of counsel claims; and 3) Dellinger did not experience ineffective assistance of counsel.

The Supreme Court held that a claim of actual innocence based on new scientific evidence is, in fact, cognizable in an initial post-conviction relief petition. However, it affirmed the Court of Criminal Appeals' decision to deny relief because Dellinger failed to meet the burden of proof for his claim. The court also confirmed that the trial court applied the correct burden of proof regarding ineffective assistance of counsel claims and amended Tennessee Supreme Court Rule 28 for clarity. Ultimately, the court found that Dellinger was not denied effective assistance of counsel and upheld the Court of Criminal Appeals' judgment in all other respects. 

The case stems from Dellinger's conviction in 1996 for the first-degree murder of Tommy Griffin, alongside co-defendant Gary Sutton. Evidence presented at trial indicated that Dellinger, Sutton, and Griffin had spent time together in a bar before an altercation occurred involving the three men in a car, which was reported by witnesses.

Sharon Davis witnessed a shirtless man stumbling along Alcoa Highway, later observing two men by a dark Camaro looking for something. Officer Drew Roberts encountered two men near a pickup truck, one of whom, Griffin, claimed his friends had abandoned him but refused to name them. Griffin was arrested for public intoxication and booked at 7:40 p.m. Dellinger arrived later to inquire about Griffin’s release, learning from Sergeant Ray Herron that a minimum four-hour detention was required. Around 9:00 p.m., resident Alvin Henry saw Dellinger’s pickup truck and later noticed a fire at Griffin’s trailer, determined by arson investigator Gary Clabo to be intentionally set.

Jennifer Branam, Griffin’s niece, rushed to the scene and encountered Dellinger and Sutton, who denied Griffin's presence at the trailer, claiming he was elsewhere. Subsequently, Jennifer observed Dellinger transferring an object resembling a shotgun from his truck to his wife’s car, witnessed by Herman Lewis. Dellinger and Sutton left in the Oldsmobile and returned to the jail around 11:25 p.m., where Dellinger paid Griffin's bond and was overheard discussing plans to return to Sevier County. Witnesses Jason McDonald and Brenda McKeehan heard two loud gunshots at 11:55 p.m. from the nearby Blue Hole area. The next morning, Jennifer saw Dellinger removing the object from his wife's car and placing it under his trailer. Later, Connie Branam, Griffin's sister, sought information about her brother at a grocery store and was seen talking to Dellinger and Sutton.

Terry Lilly Newman approached Branam, Dellinger, and Sutton inquiring about her brother, Griffin. Branam was searching for Griffin, who had left the bar, but Newman was confused as she knew he left with Dellinger and Sutton. Dellinger mentioned their return to Howie’s after bailing Griffin out, which Newman disputed since she had worked until closing. Sutton, after failing to persuade Newman to join their search, made a threatening remark suggesting her husband would be surprised if she went missing. Dellinger, Sutton, and Branam left the bar around 6:30 p.m.

Later that evening, around 8:00 p.m., James and Barbara Gordon noticed a fire in the woods near Clear Fork. The next morning, Barbara observed a white truck with two men leaving the woods rapidly, coming from the area of the fire. On February 24, Griffin’s body was discovered face-down at the Blue Hole, having been shot in the neck with a shotgun. Nearby, two 12-gauge shell casings and beer cans were found, with the shells linked to the same gun that fired shells later discovered in Dellinger’s yard. Dr. Eric Ellington conducted the autopsy, determining Griffin died from a shotgun wound that destroyed his brain stem.

On February 28, Connie Branam’s body was found in her burned vehicle in the same area where the Gordons observed the fire. An arson investigator concluded the fire was set intentionally, and a rifle shell found in the vehicle matched a .303 rifle found in Dellinger’s trailer. The prosecution posited that Griffin was killed late on February 21, 1992. Dellinger’s defense called Dr. Larry Wolfe, who estimated Griffin’s death occurred between 3:30 a.m. and 3:30 p.m. on February 23, based on various forensic observations. The State did not initially present an expert on the time of death but later called Dr. Charles Harlan, who argued Griffin was likely killed between late February 21 and early February 22, agreeing with Dr. Wolfe on the presence of rigor mortis at the time of discovery.

Rigor mortis was determined to be consistent with the State's timeline for Griffin's time of death, remaining present for up to seventy-two hours post-mortem. Dr. Harlan challenged Dr. Wolfe's assertion that the autopsy indicated no early decomposition, arguing instead that early transitional lividity, bright red blood, and softening of the gastrointestinal tract did not aid in establishing the time of death. The jury convicted Dellinger and Sutton of first-degree premeditated murder and found sufficient evidence of prior violent felony aggravation to impose the death penalty under Tenn. Code Ann. 39-13-204(i)(2) (2006 Supp. 2008). Their convictions and sentences were upheld on direct appeal.

Dellinger filed for post-conviction relief on March 3, 2003, later amending the petition with appointed counsel. A hearing occurred over multiple days in late 2004 and early 2005, during which expert testimonies were presented. Dr. Neal Haskell, a forensic entomologist, argued that the lack of insect activity suggested the body had been exposed for less than twenty-four to forty-eight hours, estimating the time of death between February 22 and February 24, 1992. He acknowledged the absence of direct evidence of insect activity but inferred its lack from the reports. Dr. Stanton Kessler, a forensic pathologist, placed the time of death between February 23 and February 24, 1992, based on signs such as rigor mortis and undigested food. He clarified that rigor mortis typically dissipates within twenty-four to thirty-six hours post-death. Dr. Kessler differentiated between unburned gunpowder and insect eggs in crime scene photographs, noting the presence of a fly image. Dr. William Bass, a forensic anthropologist, corroborated the State’s timeline, stating that fixed lividity on Griffin’s face aligned with a late Friday death on February 21, 1992, supported by temperature data from that weekend.

Cool temperatures contributed to a delayed decay process in Griffin, as evidenced by the presence of partially digested food in his stomach, which the autopsy examiner could not specifically identify. Dr. Bass noted this finding, while Dr. Haskell, upon review of Bass's testimony, clarified that what was identified as fly eggs on Griffin's neck was actually buckshot buffer, and a supposed fly was a leaf tip. Haskell asserted that had Griffin's body been exposed as claimed, insect activity would have been evident. On June 2, 2005, the post-conviction trial court denied Dellinger relief, which was later affirmed by the Court of Criminal Appeals. Dellinger appealed, seeking to establish whether a claim of actual innocence is permissible under the Tennessee Post-Conviction Procedure Act. He argued for the right to assert this claim to avoid wrongful imprisonment. The court acknowledged the Act allows for freestanding claims of actual innocence based on new scientific evidence, thus avoiding broader constitutional issues. It emphasized that courts typically do not address constitutional questions unless necessary. Assuming such a claim could be reviewed, the court found the existing evidence did not meet the threshold for such a claim. The court analyzed the Act, noting provisions that permit claims based on new scientific evidence and allow reopening of post-conviction petitions if such evidence arises after the initial petition is filed, thus advocating for judicial efficiency and logic in handling such claims.

New scientific evidence of actual innocence should not be barred until after initial post-conviction proceedings. A petitioner must prove factual allegations by clear and convincing evidence under Tenn. Code Ann. § 40-30-110(f). During the trial, the State argued that Griffin was killed shortly after leaving jail on February 21, 1992, which the jury accepted. Dellinger's claim of actual innocence relies on expert testimony from Dr. Haskell and Dr. Kessler asserting Griffin died later than 3:30 p.m. on February 22, 1992. However, even if deemed "new scientific evidence," Dellinger did not meet the burden of proof. Dr. Haskell's assertion regarding the absence of insect activity was countered by Dr. Bass, who noted evidence of flies and explained their behavior in relation to temperature and environmental conditions. The trial court favored Dr. Bass's testimony, and appellate courts do not reassess credibility determinations made by the trial judge. The jury is not required to favor expert testimony over other evidence, and the lack of eyewitness accounts of Griffin's presence after his jail release further undermines Dellinger's claim. Additionally, Dellinger's ineffective assistance of counsel claim was supported by testimonies from his trial attorneys, who, despite their inexperience with capital murder cases, had previously handled non-capital murder trials.

Mr. Deas and Mr. Dixon, aware of the heightened standards for attorneys representing capital defendants, prepared for trial by attending parts of Dellinger’s trial and a death penalty seminar, and collaborated with co-defendant Sutton’s attorneys. They divided responsibilities: Mr. Deas focused on the mitigation phase while Mr. Dixon handled factual witnesses during the guilt phase. Mr. Dixon consulted forensic pathologist Dr. Cleland Blake, whose testimony was ultimately unhelpful; the State attempted to call him, but the court barred it due to his prior retention by the defense. Instead, the defense utilized Dr. Larry Wolfe to argue that Griffin's death occurred later than the State claimed. Mr. Deas expressed confidence in Dr. Wolfe’s testimony, believing it would significantly impact the case.

Prior to trial, the defense filed a motion for the names of the State’s rebuttal witnesses, but Dr. Harlan was not disclosed. When the State called Dr. Harlan unexpectedly, Mr. Deas and Mr. Dixon did not object to the lack of notice, though they objected to the introduction of opinion testimony on rebuttal. They chose not to request a continuance, believing Dr. Wolfe’s testimony had already undermined the State's position.

The excerpt also addresses the legal framework for ineffective assistance of counsel claims under the Sixth Amendment, referencing Strickland v. Washington's two-prong test: deficient performance and resulting prejudice. Dellinger contends that Tennessee procedural rules are inconsistent with Strickland's requirements, arguing that the post-conviction trial court applied an incorrect burden of proof. Specifically, Tennessee Code Annotated section 40-30-110(f) mandates that the petitioner prove allegations by clear and convincing evidence, which does not align with the Strickland standard. If the petitioner meets this burden, the court must then evaluate whether the alleged counsel error was unreasonable and whether it affected the trial outcome.

Tennessee Supreme Court Rule 28 section 8(D)(1) requires a petitioner to establish the grounds for relief by clear and convincing evidence. Dellinger claims the post-conviction trial court misapplied this burden of proof regarding his ineffective assistance of counsel claims, citing the court's statement that the burden is on the petitioner to prove the Strickland test prongs by clear and convincing evidence. Although the statement was imprecise, the court's citation to Tennessee Code Annotated section 40-30-210(f) indicates it appropriately limited the standard to factual allegations. Past case law supports that such imprecision does not signify a misapplication of law, as the correct legal standard was referenced. Dellinger must demonstrate that his trial counsel's performance fell below a reasonable standard and that this deficiency affected the trial's outcome.

To clarify the burden of proof for ineffective assistance of counsel claims and ensure consistency between Supreme Court Rule 28 and relevant statutes, Rule 28 section 8(D)(1) is amended to specify that petitioners must establish factual grounds by clear and convincing evidence. Dellinger's claims are reviewed de novo, without a presumption of correctness, but the factual findings of the post-conviction court are upheld unless contrary evidence preponderates.

Dellinger asserts his trial counsel was deficient for not securing a qualified forensic pathologist to testify about the time of death of Griffin. Testimony from attorneys at the post-conviction hearing indicates they recognized the importance of this issue. While they consulted with a forensic pathologist, Dr. Blake, his insights were deemed unhelpful. Consequently, they utilized Dr. Wolfe, a medical doctor and former coroner, whose testimony supported the defense's theory regarding the time of death. Dellinger also claims trial counsel failed to obtain an expert to counter the State's expert, Dr. Harlan.

Mr. Deas and Mr. Dixon did not receive notice regarding Dr. Harlan's rebuttal testimony and did not object on that basis; however, they opposed the State's opinion evidence. The State argued that an earlier witness, likely Dr. Blake, had been prevented from testifying due to a defense objection. Mr. Dixon stated that they opted against seeking a continuance, believing Dr. Wolfe's testimony undermined the State's theory of time of death. In evaluating claims of ineffective assistance, the petitioner cannot utilize hindsight or criticize trial strategies that were reasonably based. Dellinger failed to demonstrate a reasonable probability that the trial outcome would have differed if Dr. Haskell and Dr. Kessler had testified, as their testimonies were countered by Dr. Bass and did not challenge the credibility of key witnesses who reported hearing gunshots at a specific time. A claim of actual innocence based on new scientific evidence is permissible under Tennessee's Post-Conviction Procedure Act, leading to the reversal of the Court of Criminal Appeals' handling of that specific claim. However, Dellinger's claims for relief based on ineffective assistance of counsel and alleged erroneous burden of proof were denied, as he did not meet his evidentiary burden. The Court of Criminal Appeals appropriately addressed all remaining issues, confirming that Dellinger was not entitled to relief under Brady v. Maryland, received a fair hearing, and had no valid constitutional challenges to the death penalty. Dellinger's death sentence is set for June 3, 2009, with costs of the appeal charged to the State of Tennessee. The summary concludes with the amendment to Tennessee Supreme Court Rule 28, requiring petitioners to present their case with clear and convincing evidence.