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Ellington v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 1, 2016

MICHAEL D. ELLINGTON
v.
STATE OF TENNESSEE

          Assigned on Briefs September 20, 2016

         Appeal from the Criminal Court for Monroe County No. 14-156 Sandra Donaghy, Judge

         The petitioner, Michael D. Ellington, appeals the post-conviction court's denial of his petition for post-conviction relief from his premeditated first degree murder conviction. On appeal, he argues that the post-conviction court erred in denying relief because the State either committed prosecutorial misconduct or he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Gerald L. Gulley, Jr. (on appeal) and Jamie E. Dailey (at hearing), Knoxville, Tennessee, for the appellant, Michael D. Ellington.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Stephen D. Crump, District Attorney General; and Paul D. Rush, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert H. Montgomery, Jr., J., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The petitioner was convicted of the premeditated first degree murder of his girlfriend and sentenced to life imprisonment. State v. Michael Dewey Ellington, No. E2012-00908-CCA-R3-CD, 2013 WL 5718184, at *1 (Tenn. Crim. App. Aug. 13, 2013) (Witt, J. dissenting), perm. app. denied (Tenn. Jan. 15, 2014). His conviction was affirmed by this court on direct appeal, and the Tennessee Supreme Court denied his application for permission to appeal.

         The underlying facts of the case were summarized by this court on direct appeal as follows:

Deputy Clinton Blake Brookshire of the Monroe County Sheriff's Department testified that at 11:06 p.m. on March 17, 2009, he was dispatched to 1637 Old Highway 68. When he arrived at the residence at 11:10 p.m., he saw the [petitioner]'s two brothers at the back of the residence. The brothers told Deputy Brookshire that they entered the residence at 10:48 p.m., found the victim, and called the police.
Deputy Brookshire said that he entered the residence and discovered the victim lying face-down on the bedroom floor between a nightstand and the left side of the bed. He saw an unloaded, "single shot break action shotgun on the bed, with the action open." A spent shotgun casing was lying on the floor. Deputy Brookshire backed out of the bedroom and called for detectives and other necessary personnel. Emergency medical technicians (EMTs) Carlene Woods and Dennis Hughes arrived at the scene, and Deputy Brookshire led Hughes into the bedroom. Hughes rolled the victim onto her left side and felt her neck for a pulse. Finding no pulse, Hughes returned the victim to her original position and exited the room the way he had entered so as not to disturb the scene. Deputy Brookshire left the scene at 3:00 a.m.
On cross-examination, Deputy Brookshire testified that he did not know who placed the 911 call. He secured the scene and later turned the investigation over to Captain Michael Morgan. Deputy Brookshire did not see wadding, lead, or a knife in the bedroom; however, he saw one spent shotgun shell and one unspent round on the floor. Deputy Brookshire did not remember whether the bedroom door was open or closed when he arrived.
Dennis Reed Hughes, a Monroe County paramedic, testified that on the night of March 17, 2009, he responded to the scene on Old Highway 68. When he arrived, he went inside the residence to confirm the death of the victim. Inside the bedroom, he saw the victim lying face-down on the floor. Hughes checked the carotid artery in the victim's neck and did not find a pulse. He determined that the victim was dead.
On cross-examination, Hughes said that Deputy Brookshire followed him into the bedroom and stood at the foot of the bed while Hughes examined the victim. Hughes said that Deputy Brookshire "watched to make sure I did nothing more than check for a pulse and breathing movements and that was it."
Monroe County Sheriff's Detective Travis Brian Jones testified that on the evening of March 17, he went to the crime scene and stayed approximately three minutes. While he was there, Captain Morgan instructed him to interview the [petitioner]. Detective Jones went inside the residence, quickly surveyed the scene, and went outside. The [petitioner] was placed in a patrol car and was transported to the sheriff's department by Sergeant Darian Goodman.
Detective Jones said that he followed Sergeant Goodman and, upon arriving at the sheriff's department, took custody of the [petitioner]. Detective Jones took the [petitioner] to an office and read the [petitioner] his rights. After the [petitioner] waived his rights, Detective Jones interviewed him. Captain Morgan and Sheriff Bill Bivens were also present for the interview. Detective Jones authenticated a video of the [petitioner]'s interview, and the video was shown to the jury.
During the interview, the [petitioner] said that he had known the victim for seventeen years, that he loved her, and that they usually stayed together at a house he and his older brother, Steve, owned. On the evening of March 17, the [petitioner] and the victim went to a Mexican restaurant in Lenoir City. They visited with friends and drank "a couple beers." When they left the restaurant, the [petitioner] and the victim argued about their relationship. The [petitioner] said that they had been arguing for nine months. That night, the victim told him, "If we ever break up, nobody - nobody is going to have you." Upon arriving home, the [petitioner] took the victim's purse inside the residence and put it on a chair. The victim walked into the kitchen, and the [petitioner] thought she was getting something to drink. The [petitioner] went to the bedroom, lay on the bed, and waited for the victim. He explained that they usually undressed together and watched television before going to sleep. A lamp in the corner of the room was turned on. The [petitioner] said that the victim came into the bedroom and approached him with "something shiny" and that he knew "it was a knife." He could not describe the knife or how the victim was holding the knife. The victim did not say anything. The [petitioner] got off the bed, pushed the victim, and she fell. When she started to get up, the [petitioner] grabbed a 12 gauge shotgun he kept behind the bedroom door. The victim "rolled over" and started to get up, with the knife still in her hand. The [petitioner] pushed the victim down a second time. When she started to get up, the [petitioner] shot her. The victim fell back and rolled over, face down. He said that his stepfather had given him the gun because he had "been having problems with some people [who were] threatening our lives."
The [petitioner] said that the victim had a temper and that he feared she would cut him. The [petitioner] said that he and the victim had fought in the past; however, that night, the victim seemed "crazy" and had "snapped." After the shooting, the [petitioner] opened the gun and threw it on the bed. He left without touching the victim or the knife and drove to his mother's house where he spoke with his brothers. Detective Jones told the [petitioner] that he had talked to one of the [petitioner]'s brothers, who said that the [petitioner] told him that the [petitioner] killed the victim because "she was trying to set [the petitioner] up." The [petitioner] responded, "I don't know nothing about that." The [petitioner] said that he did not plant the knife on the victim. The [petitioner] said that he did not know how many shells the gun would hold, stating, "I ain't even shot it during my life. . . . I just pulled the trigger." The [petitioner] said that the victim took Xanax for depression and that he took medication for his thyroid, high blood pressure, and cholesterol. The [petitioner] denied using illegal drugs.
During the interview, Captain Morgan asked the [petitioner] if he loaded the gun or if the gun was already loaded when he grabbed it, noting that the police had found extra shells at the scene. After a lengthy pause, the [petitioner] said that the box of shells was behind the television. The [petitioner] said, "The gun had a shell in it, and when I thr[ew] the gun, I took the shell out of it, put the shell box down on the bed with the gun." He said that when he opened the gun, the shell bent and fell out of the gun. He left the empty shell on the floor and walked out of the room. The [petitioner] denied that he loaded the gun just prior to the shooting. The [petitioner] maintained that after he shot the victim, he grabbed the box of shells because he feared the victim would get up and come after him again. He said that he dropped the gun on the bed because he knew what he had done. The [petitioner] denied that he intended to reload the gun and asserted that he grabbed the box of shells, intending to put the used shell casing in the box.
After the interview ended, Detective Jones transported the [petitioner] to Sweetwater Hospital and watched as a blood sample was taken from the [petitioner]. The blood sample was sent to the Tennessee Bureau of Investigation (TBI) for analysis.
On cross-examination, Detective Jones testified that when he arrived at the crime scene, the [petitioner] was standing outside. While Detective Jones was at the crime scene, he saw a knife and noticed that there was blood all over the knife. The crime scene was sealed for almost four hours and then was released to the family. Detective Jones testified that the police did not obtain fingerprints from the shotgun shells or the knife and that no DNA analysis was performed on those items. Regardless, the [petitioner] admitting ...

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