Court of Criminal Appeals of Tennessee, Nashville
Session April 18, 2017
from the Criminal Court for Davidson County No. 2009-B-1419
Steve R. Dozier, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
A. Bell, Nashville, Tennessee, for the appellant, Brian
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
Everett Williams, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Camille R. McMullen, JJ.,
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
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.
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.
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 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,
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.
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.
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
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.
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.
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,  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.
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.
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.
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 ...