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Allen v. State

Court of Criminal Appeals of Tennessee, Knoxville

February 20, 2018

JAMES ALLEN
v.
STATE OF TENNESSEE

          Assigned on Briefs Date: January 24, 2018

         Appeal from the Criminal Court for Washington County No. 41230 Lisa Rice, Judge

         The petitioner, James Allen, appeals the denial of post-conviction relief from his 2013 Washington County Criminal Court jury convictions of first degree murder and possession of a firearm with intent to employ it during the commission of first degree murder, for which he received a life sentence. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

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

          Casey A. Sears, II, Johnson City, Tennessee, for the appellant, James Allen.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Tony Clark, District Attorney General; and Erin McArdle, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Washington County Grand Jury charged the petitioner with one count each of first degree premeditated murder, possession of a firearm with the intent to employ it during the commission of a first degree murder, and an order of protection violation. Prior to trial, the trial court dismissed the order of protection violation charge, and following a jury trial, the petitioner was convicted as charged of first degree murder and the unlawful possession of a firearm. The trial court imposed a sentence of life imprisonment. This court affirmed the convictions and sentences on direct appeal. See State v. James Henry Allen, No. E2014-00529-CCA-R3-CD (Tenn. Crim. App., Knoxville, Jan. 23, 2015), perm. app. denied (Tenn. Aug. 13, 2015).

          The evidence adduced at the petitioner's trial established that the petitioner and Deborah Kay Franklin Keplinger divorced in 1994 after more than nine years of marriage, but despite their divorce, the couple continued to occasionally live together during their off-and-on relationship. Id., slip op. at 2. In December 2009, during a time in which she was not seeing the petitioner, Mrs. Keplinger began dating the victim, Richard Carter. Id. Although Mrs. Keplinger did not inform the petitioner of her relationship with the victim, the petitioner eventually discovered it and "expressed his disapproval" about the relationship to one of his and Mrs. Keplinger's daughters. Id. After enduring numerous disparaging comments and threatening text messages from the petitioner, Mrs. Keplinger obtained an order of protection against him, although the text messages continued. Id. The petitioner would also send messages to Mrs. Keplinger through their daughter and would yell at Mrs. Keplinger while standing across the street from her residence. Id. Mrs. Keplinger reported this behavior to the police on several occasions, eventually resulting in the petitioner's arrest in March 2010 for violating the order of protection. Id., slip op. at 2, 3. Following his arrest, the petitioner continued to threaten Mrs. Keplinger, telling their daughter "that he 'was going to kill [Mrs. Keplinger] and [the victim].'" Id., slip op. at 3.

         At some point, the victim began living with Mrs. Keplinger in the same residence where she and the petitioner had lived during their marriage. Id. On the night of May 10, 2010, Mrs. Keplinger and the victim were at home when she heard her dogs barking sometime after 9:30 p.m. Id. When Mrs. Keplinger stepped outside to investigate, she noticed that the front porch light did not illuminate. Id. Mrs. Keplinger returned inside and asked the victim to look at the light, knowing that the light bulb had recently been replaced. Id. The victim stepped outside to examine the light fixture and confirmed that the light bulb was missing. Id. While Mrs. Keplinger walked to the kitchen to retrieve a new light bulb, the victim closed the front door and looked through the diamond-shaped window in the door. Id. Mrs. Keplinger then heard four or five gunshots, and she ran to the front door. Id., slip op. at 4. The glass in the door had been shattered, and the victim, stating that he had been shot, collapsed onto the floor. Id. Mrs. Keplinger called 9-1-1 and repeatedly told the dispatcher that the petitioner was likely the shooter. Id., slip op. at 5. The victim was transported to the hospital but succumbed to his wounds, which included three gunshot wounds to the chest area. Id., slip op. at 4, 5.

         Following his arrest, the petitioner gave a statement to police officers, which statement was admitted into evidence at trial and included the following:

After being with [Mrs. Keplinger] for 26 years and seeing [the victim] hug her was making me angry. I felt like I had lost my second family at this point. It made me snap. It was like a dream. I went up to th[e] house to the right of the mobile home and got a rifle that was hid in the house after I saw them hugging in the window. I went and was petting my dog. I didn't want to be seen so I unscrewed the light bulb and put it in my pocket. I went back to petting my dog and Peaches the inside dog started barking and [Mrs. Keplinger] came to the door and let the dog out and said something about the light not working. She shut the door and [the victim] came to the door and put his face in the window. My son and daughter had told me that [the victim] had been carrying a gun. I shot a warning shot or 2 in the air. In the door window it looked as if [the victim] was pulling a gun up and I shot a few shots through the door to scare him. I started walking down Cherry Lane towards [H]ighway 93. I crossed 93 and across the bridge behind the barn. I passed out for about an hour because I was tired. After I woke up I thought that I had dreamed it all. I got a phone call from Jerry Arnold my nephew and he said that [the victim] had got shot and I saw a rifle lying there and I figured it was true. I walked into the woods and set up some snares. I shot me a rabbit to eat and went to sleep. I had planned to stay in the woods a couple of days to mellow me out. I hadn't been over there in 6 weeks. I don't know why I went over there. As I walked up Cherry Lane initially, I could see through the rear sliding door where the pool table was and I could see them hugging. That really made me snap. After spending the night in the ...

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