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Dunkley v. State

Court of Criminal Appeals of Tennessee, Nashville

July 5, 2017

BRIAN DUNKLEY
v.
STATE OF TENNESSEE

          Session April 18, 2017

         Appeal from the Criminal Court for Davidson County No. 2009-B-1419 Steve R. Dozier, Judge

         The Petitioner, Brian Dunkley, was convicted after a jury trial of conspiracy to commit first degree murder for his involvement in a plot to murder his wife. The Petitioner filed a post-conviction petition alleging that he received the ineffective assistance of counsel when his trial counsel failed to provide advice during plea bargaining, failed to challenge the State's loss or destruction of evidence, failed to suppress evidence on the basis of an invalid warrant, failed to suppress evidence on the basis of an invalid subpoena, and failed to introduce evidence regarding his location at the time of a co-defendant's arrest. After a hearing, the post-conviction court denied relief. We conclude that the Petitioner has failed to show that he received the ineffective assistance of counsel, and we accordingly affirm the judgment of the post-conviction court.

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

          Jodie A. Bell, Nashville, Tennessee, for the appellant, Brian Dunkley.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn R. Funk, District Attorney General; and Pamela Anderson and Megan King, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         Trial

         The murder-for-hire plot came to light when Herman Marshall told law enforcement that his brother-in-law, co-defendant Donte Chestnut, had approached him with an opportunity to make $10, 000 for committing a murder. State v. Brian Dunkley, No. M2012-00548-CCA-R3-CD, 2014 WL 2902257, at *1 (Tenn. Crim. App. June 25, 2014) perm. app. denied (Tenn. Nov. 20, 2014). The victim of the murder was to be Kristi Dunkley, who was married to the Petitioner but in the process of obtaining a divorce from him. Id. at *1, 9. Cooperating with law enforcement, Mr. Marshall made contact with co-defendant Stephanie Frame, who had been romantically involved with the Petitioner during his marriage and who was responsible for coordinating the murder. Id. at *2, 5-10. After Ms. Frame's arrest, she made a telephone call from jail implicating a third co-defendant, William Miller, who had attempted to carry out the murder plot prior to the involvement of Mr. Chestnut but had been unsuccessful in doing so. Id. at *4, 5-9.

         Ms. Frame provided testimony regarding the conspiracy during trial. Her testimony was bolstered by numerous text messages taken from two telephones at issue on post-conviction: a T-mobile G-1 telephone and a "shadow phone, " both of which belonged to Ms. Frame. Id. at *3-4. Law enforcement extracted data from the G-1 telephone and released it to Ms. Frame's mother shortly before the Petitioner's indictment. Ms. Frame testified, and the text messages and other evidence corroborated, that Ms. Frame and the Petitioner had plotted to kill the victim for a period of months. Id. at *5-10. The two enlisted Mr. Miller to commit the crime, providing him with a gun and giving him an advance payment of $700. Id. at *5-9. The balance of the payment to Mr. Miller was to come from certain life insurance policies. Id. at *6. Mr. Miller and Ms. Frame attempted to break open the door to the victim's apartment with a sledgehammer one night, and they damaged the door but were unsuccessful in opening it. Id. at *8-9. Mr. Miller subsequently became ill, and Ms. Frame turned to Mr. Chestnut for help in furthering the plot. Id. at *9. When Mr. Chestnut put her in touch with Mr. Marshall, she met him at the parking lot of Skyline Hospital and gave him a gun, a body suit, a hairnet, a can of pepper spray, and $200. Id. at *2. She also drove him to the victim's apartment so that he would know the victim's location. Id. Law enforcement were monitoring the meeting and saw a black Hummer drive around the hospital parking lot while Ms. Frame was speaking with Mr. Marshall. Id. at *5. Evidence was introduced that the Petitioner drove a black Hummer. Id. at *5, 8, 12. After Ms. Frame returned Mr. Marshall to the hospital, she was arrested. Id. at *3.

         The text messages between the Petitioner and Ms. Frame were highly incriminating and included numerous references to the murder of the victim, including the Petitioner's texts that Ms. Frame should "Help me ... get rid of the bitch[, ]" that his wife was on "borrowed time, " and that she would be "taken out." Id. at *7, 20. The Petitioner communicated with Ms. Frame regarding the details of the victim's work schedule, the location of her vehicle, and other information bearing on accomplishing the murder. Id. at *6. The Petitioner and Ms. Frame also exchanged text messages about the more mundane and intimate details of their lives. In addition to the text messages pulled off of Ms. Frame's telephones, the prosecution introduced records obtained from telephone service providers for Ms. Frame's cell phone and for Mr. Chestnut's cell phone. Pursuant to a judicial subpoena, the prosecution also obtained from a service provider records related to two cell phones in the Petitioner's name. None of the records obtained from the service providers contained the substance of any communication between the parties. Instead, Ms. Frame's cell phones were the sole source of the substance of the numerous text messages between Ms. Frame's phones and the numbers belonging to Mr. Chestnut and the Petitioner. Ms. Frame testified at trial that the Petitioner actively deleted text messages from his cell phone because he was "'paranoid.'" Id. at *11.

         Post-Conviction

         At the post-conviction hearing, trial counsel testified that she was retained by the Petitioner in August 2010 and that trial was set for November 2010. She reviewed all of the discovery, including the text messages, and she met with the Petitioner several times. Trial counsel testified that she discussed the text messages with the Petitioner multiple times and that the Petitioner was aware of the content of the text messages. Trial counsel testified that she discussed the weight of the evidence, including the text messages, with the Petitioner but did not recall ever telling him that the State had a strong case against him. Trial counsel described the text messages as "damning." According to trial counsel, the Petitioner, who had previously worked for the State in the field of information technology and who was educated and intelligent, wanted to be exonerated and had always wanted to go to trial. Trial counsel discussed the Petitioner's exposure with him but did not recall ever recommending that he pursue a plea agreement. Neither did she ever express concern to his mother or to Joslynn Williams-Dunkley, [1] his girlfriend, regarding the strength of the State's case, because she did not want to affect their testimony in the event she chose to call them to testify.

         According to trial counsel's testimony, on the morning of trial, she asked the Assistant District Attorney General about any offers to settle the case. Trial counsel stated that the prosecutor responded with an offer to recommend a sentence that was either at the bottom of the range for a Class A felony or the top of the range for a Class B felony in exchange for a guilty plea. Trial counsel spoke to the Petitioner about the offer for approximately five minutes. During this time, she did not discuss the strength of the State's case or the Petitioner's potential range of punishment. While trial counsel believed that entering a plea would be in the Petitioner's best interest, she did not share her opinion with him, make any recommendation regarding a plea, or ask for additional time to consider the offer in order to have a thorough discussion with the Petitioner. The Petitioner, with no guidance from trial counsel, responded he would consider serving a six-year sentence. The State promptly rejected this offer, and trial commenced.

         According to trial counsel, Ms. Frame had two telephones with inculpatory evidence. Trial counsel tried to suppress the older text messages on the "shadow" phone based on Tennessee Rule of Evidence 404 and moved to dismiss the indictment and suppress evidence from the G-1 phone based the State's loss or destruction of evidence, pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). Trial counsel admitted that she had misunderstood the burden of proof regarding the Ferguson issue and did not present any evidence at the motions hearing. Trial counsel's motions were denied, and she re-filed the motions closer to trial. In preparation for the second hearing on the motion to suppress and motion to dismiss, trial counsel issued a subpoena to Ms. Frame's mother, directing Ms. Frame's mother to bring the G-1 telephone with her. The telephone was made available to the defense on the morning of the hearing. Trial counsel then struck the motions. At the post-conviction hearing, she agreed that the telephone had been in use and was not preserved by law enforcement. Trial counsel testified that she had been concerned regarding the destruction of voicemails and pictures but had never considered investigating the applications present on the telephone. She agreed that the Petitioner never specified what information on the telephone could have been helpful to him and that it was "pure speculation" and "essentially a fishing expedition" to assert that the telephone contained exculpatory information.

         Trial counsel did not challenge the warrants for records related to Ms. Frame's two telephones or the judicial subpoena for the records related to the Petitioner's telephones. She agreed with the prosecution that the Petitioner would not have had standing to contest the warrants for Ms. Frame's telephones and that the State could have gotten new subpoenas if the subpoenas for the Petitioner's telephones had been found not to comply with statute. Ms. Frame's "shadow" telephone contained text messages which included pictures of the Petitioner sent from a number corresponding to one of his telephones, and trial counsel agreed that it would have been "extremely difficult" to challenge the premise that he was the one sending photos of himself.

         Trial counsel's strategy was to shift the blame to Ms. Frame and to advance a theory that she had fabricated the text messages as a result of a delusional obsession with the Petitioner. Trial counsel testified that she could not recall whether she had known that the prosecution would introduce evidence that a Hummer was circling the parking lot of the hospital while Ms. Frame met with Mr. Marshall. She recalled that the Petitioner wanted her to question his girlfriend, Ms. Williams-Dunkley, regarding the allegation. Trial counsel chose not to call Ms. Williams-Dunkley because the State possessed evidence calling Ms. Williams-Dunkley's credibility into question, including a civil judgment against her related to the sale of the Petitioner's Hummer, a finding from the divorce court that she had benefited from the Petitioner's liquidation of his 401K, and recorded calls to the jail in which she spoke with the Petitioner regarding keeping the Hummer. Trial counsel acknowledged that the records from the Petitioner's cell phone indicated that he was in Goodlettsville and not at Skyline hospital around the time of the meeting between Ms. Frame and Mr. Marshall.

         Over the Petitioner's objection, Pamela Anderson, the Assistant District Attorney General who was representing the State at the post-conviction hearing, elected to testify. Ms. Anderson, who had prosecuted the Petitioner, stated that the prosecution had a strong case. Ms. Anderson testified that the State was entirely unwilling to allow any of the defendants on trial that day-Mr. Chestnut, Mr. Miller, or the Petitioner-to be severed from the other defendants, and she added that the State was not willing to entertain a plea to a reduced charge. We note that the Petitioner was charged with and acquitted of attempted aggravated burglary and attempted first degree murder. According to Ms. Anderson, the State never extended an offer to the Petitioner, and any plea negotiations would have been contingent on both the victim's approval and the entry of guilty pleas to the indicted offenses from all the other defendants on trial. Ms. Anderson agreed that the State "would have likely settled it" if the victim had agreed to the plea and if the other co-defendants had decided to plead guilty. Ms. Anderson stated that counsel for a co-defendant opened plea discussions on the day of trial. Ms. Anderson had told trial counsel that if the Petitioner were to offer to plead guilty to the indicted offense, [2] the State "might be willing" to agree to the minimum sentence in the Range. Ms. Anderson confirmed that trial counsel returned with a six-year offer, which the State rejected out of hand. She agreed with trial counsel that the trial judge in the case generally approved plea agreements reached by the parties.

         Detective Norris Tarkington testified that Ms. Frame was arrested around 8:30 p.m. on March 2, 2009, and that he ultimately seized both the G-1 telephone and the "shadow" phone which she had used during the relevant period. One of the telephones was in Ms. Frame's possession, and he learned of the other while monitoring Ms. Frame's telephone calls from jail. The second telephone was in the possession of Ms. Frame's mother, and after law enforcement retrieved information from the telephones, he returned one of them to Ms. Frame's mother.

         Detective Tarkington testified that he could not find video surveillance of the Hummer in the parking lot because the cameras were too far away. He testified that Skyline hospital is in Nashville. Detective Tarkington testified regarding some of the communications between the Petitioner and Ms. Williams-Dunkley that would have affected her credibility. Ms. Williams-Dunkley had written the Petitioner, "I have got your back, baby, " and told him, "I'm not blinded by love, I'm engulfed in it." Ms. Williams-Dunkley also wrote, "I want to harm someone like I've been harmed. I want to reach deep into someone's chest and pull out their pulsating heart from its rotting cavity, " and she assured the Petitioner, "Revenge will be mine." She also referenced in a letter a plot that she and the Petitioner had concocted during a jail call, in which they planned to fabricate charges against the victim's uncle so that he would be arrested and the Petitioner could beat him up in jail.

         The Petitioner, who had owned a consulting company and performed information technology work for the State of Tennessee prior to his conviction, hired trial counsel because his previous counsel, who represented him for four or five months, had not responded to his communications. The Petitioner testified that trial counsel never discussed his exposure or the State's theory of the evidence, including evidence that he stood to profit through the victim's death due to an insurance policy. The Petitioner had a prior criminal charge to which he pled guilty and for which he obtained diversion. He also had experience in divorce court. The Petitioner was aware that "there would be text messages, " but trial counsel never reviewed the text messages line-by-line or discussed them. Trial counsel gave Petitioner the impression that the State had only screen shots of the text messages, that some of these did not have an identifying telephone number and were "outside the scope of the charges, " and that the messages "wouldn't be anything to worry about" because they would not be admissible. Trial counsel also told him that the defense could discredit Ms. Frame's testimony. The Petitioner had the impression that trial counsel had "everything under control, " and he had no concern that he would be found guilty. He did not see all of the text messages until trial, although his first attorney had given him two ...


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