Court of Criminal Appeals of Tennessee, Nashville
DENNIS M. DYKES
STATE OF TENNESSEE
Session February 14, 2017
from the Circuit Court for Grundy County No. 4920 Justin C.
Dennis M. Dykes,  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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.,
TIMOTHY L. EASTER, JUDGE
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
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. 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
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.
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.
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.
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 ...