Nine days before convicted Hamblen County murderer Nicholas “Nicky” Sutton is scheduled to die in the electric chair at Riverbend Maximum Security Institution in Nashville, the Tennessee Court of Criminal Appeals dealt the 58-year-old quadruple killer another setback.
The appeals court opinion focuses on the homicide for which Sutton received the death penalty, the 1985 knifing death of Carl Estep, an inmate at Brushy Mountain State Prison.
He received life-without-parole sentences for the killing of his grandmother, Dorothy Sutton, a friend, John Large and an alleged Knoxville drug dealer named Charles Almon.
The primary issue Sutton raises is whether several jurors seeing him cuffed and shackled during the capital trial and sentencing hearing is newly discovered evidence that warrants a new trial.
Judge Robert H. Montgomery, writing for the unanimous court, concluded a Morgan County judge – Brushy Mountain Prison is in Morgan County – did not err when he dismissed Sutton’s petition for relief, and there are multiple reasons, not the least of which is that the issue of courtroom security had been settled in previous litigation in both state and federal court.
“The court further determined that (Sutton) ‘did not provide plausible explanation’ for the delay in obtaining the affidavits of the jurors until October 2016, thirty years after the trial,” the opinion states.
Also, so-called “error coram nobis” proceedings allow a court to correct its original judgment upon discovery of an error that did not appear in the records of the original judgment and would have prevented the judgment from being entered. The error must involved newly discovered evidence of “actual innocence,” not a procedural flaw.
Sutton’s appellate attorney, Justyna Garbaczewska Scalpone, argued that the trial attorney’s failure to raise the issue of the cuffs and shackles prejudicing the jurors against her client amounted to ineffective assistance of counsel.
The opinion states that there is no right to effective assistance of counsel in post-conviction proceedings.