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Dykes v. State

Court of Criminal Appeals of Tennessee, Nashville

April 12, 2017

DENNIS M. DYKES
v.
STATE OF TENNESSEE

          Session February 14, 2017

         Appeal from the Circuit Court for Grundy County No. 4920 Justin C. Angel, Judge.

         Petitioner, Dennis M. Dykes, [1] appeals from the dismissal of his petition for post-conviction relief. After a review, we determine Petitioner waived his issues by failing to present them on direct appeal. As a result, the judgment of the Circuit Court is affirmed.

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

          Robert T. Carter, Tullahoma, Tennessee (on appeal), and Dennis M. Dykes, Tracy City, Tennessee, Pro Se (at trial) for the appellant, Dennis M. Dykes.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Mike Taylor, District Attorney General; and David L. Shinn, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Petitioner was indicted by the Grundy County Grand Jury in July of 2012 for aggravated assault in case number 4920. Petitioner represented himself at trial despite repeated admonition from the trial court about proceeding pro se. Petitioner signed an acknowledgement of his rights and waiver of the right to have an attorney.

         The incident that gave rise to the indictment and trial occurred in November of 2011 after one of the victim's dogs attacked one of Petitioner's dogs. As a result of the dog fight, Petitioner incurred several thousand dollars in bills for the veterinary care of his dog, requested that the victim pay for the veterinary care, and allegedly threatened the victim with a shotgun when he refused to pay.[2] After a jury trial, Petitioner was found guilty of the lesser included offense of reckless endangerment with a deadly weapon, a class E felony. Petitioner was also assessed a $3000 fine. After a sentencing hearing, Petitioner was sentenced to two years as a Range I, standard offender. The sentence was suspended to supervised probation. The judgment was entered on March 11, 2015. Petitioner did not file a notice of appeal.

         On June 6, 2015, Petitioner filed a pro se petition for post-conviction relief. In the preprinted form provided in the appendix to Rule 28 of the Tennessee Supreme Court Rules, Petitioner indicated that the grounds for the petition included the following: (1) his conviction was based on action of a grand or petit jury that was unconstitutionally selected and impaneled; (2) newly discovered evidence; and (3) other grounds. After the filing of the pro se petition, an affidavit and warrant were filed for an alleged violation of probation in case number 4920. The affidavit accompanying the warrant stated that the Grundy County Grand Jury indicted Petitioner in July 2015 on two counts of forgery.

         On January 11, 2016, Petitioner filed an amended petition for post-conviction relief. This amended petition alleged that Petitioner's right to a fair trial was violated because Petitioner was subject to a "pat down" in "full view of the venire and the ultimate jury." The petition also alleged that he was "deprived of the right to be tried before an untainted jury" because two additional jurors who were not listed in the original jury panel appeared before the court. Petitioner alleged that one of those jurors was the wife of an agent for the Tennessee Bureau of Investigation, who had investigated Petitioner for the crimes for which he was on trial. Petitioner alleged that, had he known of this potential juror's background, he would have exercised a challenge to this juror.

         The post-conviction court held a hearing on the petition. At the hearing, Amy Kilgore testified that she was a member of the jury venire in the courtroom on the day Petitioner's trial was scheduled to start. She did not ultimately get placed on the jury. Ms. Kilgore saw a police officer pat-down Petitioner in the courtroom. There were not many people present in the courtroom at the time, and she could not recall if any of the jurors who were later chosen to sit on the jury witnessed the pat-down.

         Likewise, Deputy Danice Taylor testified that she was present in the courtroom on the day of Petitioner's trial. Deputy Taylor performed the pat-down of Petitioner for weapons but did not recall if the pat-down was for trial or some other unspecified reason because Petitioner had "been [in the courtroom] so much." Deputy Taylor could not remember who ordered the pat-down or how many people ...


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