Court of Criminal Appeals of Tennessee, Knoxville
MICHAEL D. ELLINGTON
STATE OF TENNESSEE
Assigned on Briefs September 20, 2016
from the Criminal Court for Monroe County No. 14-156 Sandra
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
L. Gulley, Jr. (on appeal) and Jamie E. Dailey (at hearing),
Knoxville, Tennessee, for the appellant, Michael D.
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.
E. Glenn, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert H. Montgomery, Jr., J.,
E. GLENN, JUDGE
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
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
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
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
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
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
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 ...