Vernica Shabree Calloway, AKA Vernica S. Ward, AKA Vernica Jackson v. State of Tennessee ( 2017 )

09/01/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 8, 2017
VERNICA SHABREE CALLOWAY, AKA VERNICA S. WARD, AKA
VERNICA JACKSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2007-C-2178 Cheryl A. Blackburn, Judge
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No. M2016-02576-CCA-R3-PC
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The petitioner, Vernica Shabree Calloway, a.k.a. Vernica S. Ward, a.k.a. Vernica
Jackson, appeals the denial of her post-conviction petition, arguing trial counsels’
strategy regarding the use of expert witnesses on behalf of her defense was ineffective.
Following our review, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and D. KELLY THOMAS, JR., JJ., joined.
Kara L. Everett, Carthage, Tennessee, for the appellant, Vernica Shabree Ward.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; Glenn Funk, District Attorney General; and Katrin Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
A. Trial Proceedings and Direct Appeal
The petitioner was convicted by a Davidson County Criminal Court jury of
aggravated child neglect and reckless aggravated assault, for which she received an
effective sentence of twenty-five years imprisonment. This Court affirmed her
convictions on direct appeal, and our Supreme Court denied her application for
permission to appeal. State v. Vernica Shabree Calloway, M2011-00211-CCA-R3-CD,
2014 WL 1394653, at *1 (Tenn. Crim. App. Apr. 4, 2014), perm. app. denied (Tenn.
Sept. 25, 2014). On direct appeal, this Court recited the following underlying facts and
procedural history:
This case[] arises out of the [petitioner]’s having given birth at home
on a toilet on October 31, 2006. The [petitioner] took her newborn
daughter to a hospital several hours later, and the child survived but
suffered permanent brain damage as a result of “hypoxia,” or a lack of
sufficient oxygen, which occurred sometime around birth. In August 2007,
the [petitioner] was indicted for the aggravated child neglect, aggravated
child abuse, and attempted first degree murder of the victim. The attempted
murder charge was dismissed prior to trial, however.
In order to understand the issues raised in this appeal, we must
provide some background information about the [petitioner] and her
criminal history. Before the trial in this case, the [petitioner] was charged
in the deaths of three other children, Stephen Ward, Alexis Humphreys, and
Stephanie Ward, who had each, at separate times, died while under her
care. Stephen and Stephanie Ward were the [petitioner]’s son and daughter,
and Alexis Humphreys was the daughter of the [petitioner]’s friend.
The [petitioner] was first tried and convicted of the second degree
murder of her daughter, Stephanie Ward. State v. Ward, 138 S.W.3d 245,
250 (Tenn. Crim. App. 2003). Because Stephanie was the third child in the
[petitioner]’s care to die of unexplained causes, the State’s expert medical
witnesses in that case relied on the “‘rule of three,’ i.e. the first unexplained
child death in the presence of a sole caregiver can be classified as SIDS
[Sudden Infant Death Syndrome], with the second such death classified as
undetermined, and the third and subsequent deaths result in all of the deaths
being classified as homicides by asphyxiation,” in concluding that
Stephanie’s death was a homicide by asphyxiation. Id. at 270-71. This
court reversed the conviction and remanded for a new trial due to the
medical experts’ reliance on the “rule of three” in reaching their
determinations, even though the experts did not refer to it as such,
concluding that neither the “rule of three” nor the concept behind the rule
was a proper foundation under the standards set forth in McDaniel v. CSX
Transp. Inc., 955 S.W.2d 257, 265 (Tenn. 1997), for expert opinion
testimony. Ward, 138 S.W.3d at 271.
The [petitioner] was subsequently retried in that case. The jury
acquitted her of the second degree murder charge but could not reach a
unanimous verdict on a lesser-included offense. Although the charges
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against the [petitioner] remained pending in that case, as well as in the
cases involving the deaths of Stephen Ward and Alexis Humphreys, the
State elected to try the [petitioner] next on the charges in the case at bar.
In the case at bar, both the [petitioner] and the State filed numerous
pretrial motions, including a motion by the State “to use evidence of [the]
[petitioner]’s prior conduct in support of expert witness testimony pursuant
to Tenn. Rules Evid. 702-705.” Specifically, the State sought to be allowed
to provide information to medical experts “detailing evidence of the
[petitioner]’s past conduct of smothering three children to death and
evidence of the [petitioner]’s claims that Stephanie and Stephen Ward had
episodes in which they stopped breathing before their death[s].” The State
also sought permission to provide their medical experts with evidence that
the [petitioner] had given birth to two other children who had been removed
from her care and who had not suffered any episodes of breathing
difficulties. The State asserted that such information was “foundational
evidence to enable” their experts “to form reliable opinions as to the
specific cause of [the victim’s] asphyxial trauma” and to “formulate reliable
opinions on whether the cause for [the victim’s] injuries are the result of
non-accidental trauma or resulted from some alternative cause.”
The State also filed a motion to use evidence of the [petitioner]’s
prior conduct pursuant to Tennessee Rule of Evidence 404(b). Specifically,
the State sought permission to introduce at trial evidence “of the
[petitioner]’s past conduct of causing the deaths of three other children
through asphyxial trauma” and “that Stephen and Stephanie Ward sustained
prior episodes of breathing difficulties while in the [petitioner]’s care prior
to their deaths.” The State argued that such information was “relevant to
establish that [the victim] suffered asphyxial trauma through non-accidental
means and that the [petitioner] knowingly or intentionally caused such
injuries.” The State additionally argued that “[t]he facts surrounding the
pregnancy and birth of [the victim] additionally demonstrate the
[petitioner]’s repeated efforts to conceal her pregnancy from those who
might intervene to protect the welfare of her child, and provide compelling
circumstantial evidence of the [petitioner]’s ongoing ‘common scheme or
plan’ to cause injury to children through means of asphyxial trauma and
then to cover up her misdeeds through a web of deceit.”
The State, therefore, requested that, in addition to evidence of the
[petitioner]’s involvement in the deaths of the three other children, it be
allowed to introduce at trial a number of other pieces of evidence, including
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evidence that DCS had previously removed two other children from the
[petitioner]’s care during the pendency of the criminal proceedings against
her based on the deaths of the three children; evidence that the [petitioner]
had violated various conditions of her bond; evidence that the [petitioner]
concealed her pregnancy during a September 5, 2006 court appearance;
evidence of the [petitioner]’s efforts to conceal her pregnancy from her co-
workers, employers, and various medical professionals; evidence that the
[petitioner] repeatedly provided false information about her pregnancy
history; and evidence that the [petitioner] refused to provide the names of
her previous children to DCS employee Cheryl Gooch. The State argued
that such evidence “provide[d] a conceptual framework for understanding
the [petitioner]’s conduct in regards to the pregnancy and birth of [the
victim]” and was “relevant to establish the motives behind the [petitioner]’s
efforts to conceal her pregnancy with [the victim], her motivations in
failing to pursue appropriate prenatal care, her refusal to give birth at a
hospital and her actions in concealing the delivery of [the victim] before
she went to [the hospital].” The State further argued that the “other acts”
evidence, which included the [petitioner]’s “entire course of conduct,” was
“necessary to sustain the willingness of jurors to draw the inferences
necessary to reach an honest verdict, and that the exclusion of parts of this
evidence would create an incomplete picture of the offenses, the
relationship of the parties, and a conceptual and chronological void that
would like[ly] lead to an incorrect assessment of the evidence involving the
indicted acts.”
Thereafter, the trial court held a series of pretrial hearings at which it
considered the parties’ various motions, including the ones detailed above.
The trial court issued several rulings throughout the pretrial period, some of
which we will review after summarizing the relevant testimony from the
pretrial hearings.
January 9, 2008 Pretrial Hearing
Lindy Miller, a physical therapist at Concentra Medical Center,
testified that she began treating the [petitioner] on October 27, 2006, for a
hand injury and saw her again on October 31, 2006, and November 7, 2006.
She also saw the [petitioner] for another appointment between the October
31 and November 7 visits but could not recall the exact date. Miller
obtained a medical history from the [petitioner] during her first visit, but
the [petitioner] provided no information indicating that she was pregnant.
During the October 31 visit, the [petitioner] said she was having a lot of
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pain and trouble doing her exercises, so the treating orthopedic physician,
Dr. Steve Salyers, prescribed medication for her. At the November 7 visit,
the [petitioner] informed Miller that she had had a baby but had been
unaware that she was pregnant. Miller said she never suspected that the
[petitioner] was pregnant.
Lorraine Pipkins testified that she and the [petitioner] had been co-
workers and that the [petitioner] lived with her at her apartment in
Nashville for about a month before the instant offense. The [petitioner] left
Pipkins’ apartment the night of October 31, 2006, and did not return until
about a week later to collect some clothes. At that time, the [petitioner]
told Pipkins that she was going to the hospital, but Pipkins did not know
that the [petitioner]’s child was in the hospital.
Detective Sarah Bruner of the Metro Police Department Youth
Services Division testified that she was contacted by Virginia Thomas of
the DCS to assist with interviewing the [petitioner] regarding the
circumstances of the victim’s birth. Thomas informed Detective Bruner
that the [petitioner] had been charged with the deaths of three other
children. Detective Bruner interviewed the [petitioner] at Baptist Hospital
on November 16, 2006. Bruner made a CD copy of the interview, which
was admitted into evidence. During the interview, the [petitioner] was not
physically restrained, did not appear to be under the influence of alcohol or
controlled substances, and denied using drugs prior to giving birth to the
victim. Explaining the victim’s birth, the [petitioner] said she had squatted
over the toilet, there was a pop and a gush of water, and she then gave two
pushes delivering the victim whom she pulled up to her chest. According
to the [petitioner], she then passed out. The [petitioner] also said the victim
cried vigorously, both before the [petitioner] passed out and later as she
was taking the victim to the hospital.
The [petitioner] brought up the names of three deceased children,
Stephen Ward, Stephanie Ward, and Alexis Humphreys, in the interview
and made statements about them. She talked at length about how it
bothered her that people thought she was guilty of killing those children.
Detective Bruner said that the [petitioner] was not in custody at the time of
the interview, which lasted three hours and twelve minutes. She
acknowledged that she did not ask the [petitioner] if she wished to have an
attorney present for the interview or if she was presently represented by
counsel for matters pertaining to those children. Detective Bruner learned
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that the [petitioner] had also used the last names of Ward and Jackson in the
past and had a criminal record under the name of Ward.
April 21, 2008 Pretrial Hearing
Dr. Robert Reece, a pediatrician and the director of the child
protection programs at Tufts Medical Center in Boston, Massachusetts,
testified his area of specialization was child abuse pediatrics and he had
authored a chapter about the distinction between fatal child abuse and SIDS
in the textbook, Child Abuse Medical Diagnosis and Management. He said
he was the executive editor of The Quarterly Update, a review journal that
“reviews articles that have to do with child abuse or things that could be
confused with child abuse as well as dealing with professional issues in the
field of child abuse and neglect.” Dr. Reece frequently taught at
conferences on subjects dealing with child abuse, including differentiating
between children who suffer injuries from a suffocation method versus an
accidental method. He had been qualified as an expert in the field of
pediatrics and child maltreatment in ten or twelve other jurisdictions and
was accepted by the trial court as an expert in that field.
Dr. Reece testified that hypoxia “means too little oxygen for the
tissue that’s being supplied with oxygen. So you get injury as a result of
too little oxygen.” He said that a hypoxic injury to the brain of a newborn
can occur as the result of an accident, during the birthing process, or from
intentional causes. He stated he reviewed the same sources of information
when evaluating hypoxic injuries in children whether the child lived or
died. He explained, “It’s a matter of degree of the hypoxia as to whether or
not the child goes on to death or whether it stops short of death.” He said
that external evidence is not always present when a child suffers a hypoxic
injury and explained that “many times a baby can be smothered without any
external evidence of that smothering.” Dr. Reece noted that when there is
no physical evidence to establish how a hypoxic injury occurred, it is
“critical” to have “as much information about the medical history of the
baby, the social history, the family history, the genetic history, the history
of the pregnancy, the labor and delivery, [Child Protective Services]
involvement, [and] law enforcement involvement.”
Dr. Reece acknowledged that he had not received or evaluated any
of the victim’s medical records, social services history, or police reports but
knew that the victim had been brought to the emergency room with a
hypoxic and ischemic injury resulting in the death of brain tissue as
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revealed by an MRI. He said that the victim’s brain wave test was
abnormal, indicating a cerebral injury. Dr. Reece said that, in order for him
to determine the cause of the victim’s hypoxic injury, he would need to
know the circumstances surrounding the victim’s birth, including
information about the mother’s health during pregnancy, how many prior
pregnancies she had experienced, the length of labor, previous labors the
mother may have had, whether the victim cried at the time of delivery, and
whether the victim’s birth had produced apnea or hypoxia. He noted that it
would also be important to know the mother’s pattern of behavior toward
other children, whether the victim was a wanted baby and whether “this
was something that would give some kind of motive to dispose of the
baby.” He said that inconsistent histories were “always worrisome . . .
when we’re trying to establish between a legitimate medical condition and
something that has been produced by abuse.” Medical histories for other
children born to the victim’s mother would also be important in formulating
an opinion as to the cause of the victim’s injury because there were “so
many question marks around the birth of [the victim]. The previous history
of other children having suffered other kinds of problems would make one
lean further in the direction of saying that this is an unsafe home.” Dr.
Reece explained that the term “apparent life threatening events” are events
that “would make one believe that a serious and possibly fatal outcome
could be expected if intervention is not attempted.” He said it was
important to know if there was a history of similar events involving the
victim’s siblings and other children in the care of the [petitioner].
On cross-examination, Dr. Reece agreed that there was limited time
for a treating physician to obtain historical information when a child is
brought in to the emergency room with the symptoms the victim had.
Asked what effect he thought the [petitioner]’s taking Hydrocodone on the
day of the victim’s birth had on the victim’s condition, Dr. Reece replied, “I
don’t think much . . . unless it was an ongoing use of that drug. . .. I don’t
think that has anything to do with the [victim’s] presentation.” He
acknowledged that there was no medical test to determine exactly when the
victim’s hypoxic injury occurred but said that the fact that the victim cried
immediately at birth indicated “there was probably no prenatal hypoxia
going on.” However, he agreed that the only information he had to rely
upon was what the [petitioner] provided and that if the information was
inaccurate, it called into question whether he could eliminate prebirth
hypoxia or during-birth hypoxia as the cause of the victim’s injury. He said
that if the mother had a negative social history, including drug abuse or a
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previous history of having abused or killed a child, “then child abuse will
rise up pretty high on the list” as the cause of the injury.
Dr. Reece agreed that if a woman became pregnant, did not seek an
abortion in a timely fashion, did not want the child, did not tell anyone that
she was pregnant, and no one realized that she was pregnant, it would not
be difficult for her to physically asphyxiate the child and cause the child’s
death. Because the [petitioner] related that the victim cried immediately
after birth, as well as on the way to the hospital, Dr. Reece opined that the
victim did not have any signs of a hypoxic injury during birth but agreed
that his conclusion rested upon the reliability and accuracy of the
[petitioner]’s account of the birth.
In response to questioning from the trial court, Dr. Reece said that in
determining the cause of the victim’s hypoxic injury, it was important to
know if any of the victim’s siblings suffered from a metabolic disease or
genetic condition that could lead to apnea. He also said that it would be
important to know the circumstances of the victim’s birth. He opined, “In
this case to be perfectly honest I can’t think of much else that would cause
this baby to have suffered this hypoxic injury than having been
asphyxiated. There’s just nothing else here that I’ve been provided that
would tell me what this is due to.”
On redirect examination, Dr. Reece agreed that it was very difficult
to differentiate between deaths caused by SIDS and suffocation.
June 4, 2010 Pretrial Hearing
Cheryl Gooch, a former DCS employee, testified that she was
assigned to investigate the victim’s case and that she interviewed the
[petitioner] prior to the [petitioner]’s November 16, 2006 interview with
Detective Bruner. During Gooch’s interview, the [petitioner] refused to
provide the names of her other children despite Gooch’s asking her several
times. Gooch then advised her supervisor, Virginia Thomas, about the
[petitioner]’s refusal to provide the names of her other children.
On August 4, 2008, the trial court entered a lengthy, detailed order in
which it denied the State’s motion to introduce evidence relating to the
[petitioner]’s prosecution for the deaths of the three children, the removal
of two children from the [petitioner]’s custody by DCS, and the
[petitioner]’s bond violations. The trial court granted the State’s motion to
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introduce evidence that the [petitioner] concealed her pregnancy and
repeatedly provided false information to medical personnel about her
pregnancy, finding that such information was relevant to the [petitioner]’s
motive and intent and that its probative value outweighed any prejudicial
effect.
With respect to the State’s request to provide information to its
medical experts, the trial court ruled that the State could give “limited
information” to their expert witnesses regarding the victim’s siblings’
deaths, i.e. that the cause of death should be disclosed but that the manner
of death should be listed only as “undetermined.” The court specifically
ruled that the experts should not be informed that the deaths of any of the
[petitioner]’s other children might have resulted from homicide, finding
that it would be “too prejudicial” and could potentially “slant” the opinion
of the experts. Further, the trial court ruled that the State could provide
their experts with information about the [petitioner]’s pregnancy with the
victim, the number of prior pregnancies the [petitioner] had experienced,
her previous labors, the length of her labor, her health during pregnancy,
the victim’s medical records, medical histories of the [petitioner]’s other
children including cause of death without indicating manner of death as
anything other than undetermined, and any statements the [petitioner] made
to law enforcement or medical personnel regarding her pregnancy with the
victim and the birth of the victim or the births of her other children.
June 7-10, 2010 Trial
Lorraine Pipkins testified that she met the [petitioner] while they
were both employed at the Wendy’s restaurant on Murfreesboro Road.
After the two became “close,” the [petitioner] told Pipkins that she was
pregnant, but, on February 10, 2006, the [petitioner] informed Pipkins that
her mother “told her that she had . . . lost the baby, she wasn’t no longer
pregnant.” During the late summer of 2006, Pipkins and the [petitioner]
had started working together at a Mrs. Grissom’s restaurant. While Pipkins
and the [petitioner] were at work one day, Pipkins overheard “a little old
lady” ask the [petitioner] if she was pregnant. The [petitioner] responded,
“[Y]ou got to be doing something to get pregnant,” which Pipkins
understood to mean that the [petitioner] was not pregnant.
Pipkins said that the [petitioner] came to live with her about a month
before the victim’s birth. During that time, the [petitioner] wore baggy
clothing and did not appear to be pregnant. The [petitioner] had a white,
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four-door car at the time. The [petitioner] suffered an on-the-job injury to
one of her fingers while employed at Mrs. Grissom’s, and her doctor
excused her from work until her finger healed. The [petitioner] had a
doctor’s appointment on October 31, 2006, and arrived home between 4:00
and 4:30 p.m. as Pipkins was sitting on the front porch awaiting trick-or-
treaters. The [petitioner] told Pipkins that she was “sick” and “hurting” and
went inside the apartment and sat down in the living room. The [petitioner]
“kept moaning and groaning like . . . she was hurting real bad,” but she
refused to go to the hospital. Pipkins later noticed that the [petitioner] had
left the living room and gone into the bathroom where she remained for
about forty-five minutes. While the [petitioner] was in the bathroom,
Pipkins’ daughter and grandchildren came to Pipkins’ apartment so that one
of the children could use the bathroom. The [petitioner], dressed in a towel,
came out of the bathroom and asked Pipkins’ daughter for “a pad.” The
[petitioner] then went into her bedroom and put on some clothes before
leaving the apartment between 7:30 and 8:00 p.m. The [petitioner] took her
purse with her when she left, and Pipkins’ neighbor, Danny Gooch, told
Pipkins that the [petitioner] had taken some towels with her. Pipkins said
she did not see or hear a baby that night. The next day, Pipkins noticed
some blood on the toilet, the edge of the sink, and bathtub, which she
cleaned. Pipkins said she talked to the [petitioner] about a week later, and
the [petitioner] told her that she had a “busted” ovarian cyst but did not tell
her she had given birth to a baby.
Latoya Pipkins, Lorraine Pipkins’ daughter, testified that she took
her children trick-or-treating at her mother’s apartment on October 31,
2006, between 4:00 and 5:00 p.m. She did not see the [petitioner] at that
time. Latoya and her children returned to her mother’s apartment between
8:30 and 9:00 p.m. and went inside. Latoya saw the [petitioner], who was
“still dressed,” go into the bathroom. Latoya’s daughter had to use the
bathroom, but the [petitioner] would not come out. The [petitioner] stayed
in the bathroom for “at least forty-five minutes or longer” and then stuck
her head out the door and asked Latoya for a sanitary napkin. Latoya could
not see inside the bathroom when the [petitioner] opened the door. She did
not hear or see a baby that night and left before the [petitioner] came out of
the bathroom.
Danny Gooch testified that he met the [petitioner] while she was
working at the Wendy’s restaurant. He said that he and the [petitioner] had
sexual relations and that the [petitioner] wore clothing when they had sex
and did not appear to be pregnant. He and the [petitioner] went to a Dollar
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General Store on October 30, 2006, and the [petitioner] purchased a
pregnancy test, the results of which were positive. At the time, Gooch
believed the child was his. The next day, October 31, Gooch took the
[petitioner] to her physical therapy appointment for her injured finger and
then to Walgreens to pick up a prescription. They then went to Lorraine
Pipkins’ apartment, and the [petitioner] said that her stomach was
cramping. Gooch went outside and sat on the front porch with Ms. Pipkins.
When Gooch went back inside, the [petitioner] was “just laying there
crying” as if in pain. He offered to take her to the hospital, and the
[petitioner] said, “[M]aybe later on.” The [petitioner] left Pipkins’
apartment sometime after 9:00 p.m., carrying her purse and a laundry
basket full of clothes and towels, and told Gooch that she was going to her
mother’s house to wash the clothes. Gooch watched the [petitioner] as she
placed the laundry basket in the front passenger’s seat of her car and then
drove off. He did not see or hear a baby that night.
Gooch said that the [petitioner] called him at about 4:00 the next
morning and told him she was at Baptist Hospital and asked him to come
there. When he arrived at the hospital, the [petitioner] told him she had
delivered a baby. Although he did not believe that the victim was his child,
he signed her birth certificate because he and the [petitioner] were “close”
and he “felt like that was [his] duty.” He said he did not know the identity
of the victim’s father. The [petitioner] later asked him to move her car, and
he noticed some bloody towels on the driver’s seat. He found the
[petitioner]’s laundry basket, still containing clothes, in the trunk of the car.
The [petitioner] asked him to take the clothes she wore to the hospital home
and wash them, but he did not do so because the bag containing the clothes
was “full of blood.” He said he threw away the [petitioner]’s clothes and
the bloody towels he found in her car. When he asked the [petitioner]
where she had delivered the baby, the [petitioner] said, “[W]e’ll talk about
it,” but they never discussed it again.
Andre Phillips testified that he met the [petitioner] in 2006 at the
Buena Vista Apartments where the [petitioner]’s sister, Monica Ward,
lived. He and the [petitioner] dated for about a month during the early part
of 2006 and had sexual relations. At the time he dated the [petitioner], she
was living with her mother in Antioch. About two or three days after the
victim’s birth, he learned that the [petitioner] had delivered a baby. He
went to the hospital to see the victim because he believed she was his child.
When he later talked to the [petitioner], she acknowledged that the victim
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was his child. He said he did not know that the [petitioner] was pregnant
until after the victim’s birth.
Monica Ward, the [petitioner]’s sister, testified that the [petitioner]
was thirty-two years old and had six children, including Stephen, who was
born on December 2, 1998; Paul, who was born in April 2000; and Jaylin,
who was born in August 2001 outside of a hospital setting. She did not
know the [petitioner] was pregnant with the victim and when she talked to
the [petitioner] on October 31, 2006, the [petitioner] did not say anything
about being in labor. The [petitioner] called Ward from the hospital in the
early morning hours of November 1, 2006, and told her she had given birth
on October 31 but did not say where the victim was born. The [petitioner]
told Ward that Andre Phillips was the victim’s father and asked her to
contact him. While Ward was at the hospital, she learned that Danny
Gooch had volunteered to sign the victim’s birth certificate listing himself
as the father.
Officer Johnny Lawrence with the Metropolitan Nashville Police
Department testified that he assisted Detective Sarah Bruner in collecting
evidence at Pipkins’ residence on November 22, 2006, and identified
photographs he took of the residence. He also collected three samples from
stains on the wall and door of the bathroom that could have been blood.
The samples were submitted to the Tennessee Bureau of Investigation for
analysis but tested negative for blood. He said that household bleach could
“clean [blood] up where you can’t find anything.”
Dr. Steve Salyers, an orthopedic physician, testified that he treated
the [petitioner] for her workers’ compensation injury. He first saw her on
October 24, 2006, during which time the [petitioner] did not advise him of
her pregnancy. He again saw the [petitioner] on November 7, 2006, and
learned from Ms. Miller that the [petitioner] had given birth. He prescribed
Hydrocodone for the [petitioner] based on her complaint of pain during the
October 24 visit and acknowledged that the prescription could have been
filled on a different date. On cross-examination, Dr. Salyers said that, in
preparation for his trial testimony, he had consulted an obstetrician and
learned that Hydrocodone was considered a safe drug for the third trimester
of pregnancy.
Cassandra Hester testified that in 2006 she was the care coordinator
for the Neonatal Intensive Care Unit (“NICU”) at Baptist Hospital in
Nashville. She said that she had “basically cared” for the victim and met
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with the [petitioner] to discuss the circumstances surrounding the victim’s
birth. The [petitioner] told Hester that she had given birth to the victim at
home in the toilet and did not provide any information about the victim’s
condition at the time of birth.
Dr. Mary Jane Haynes, a neonatologist in the NICU at Baptist
Hospital, testified that she examined the victim between 3:15 and 3:30 a.m.
on November 1, 2006. She observed that the victim was “irritable . . . and
very jittery. . .. [T]he baby was shaky and could not be consoled easily.
The baby was stiff. The tone was increased.” Dr. Haynes explained that
increased tone meant that the victim’s muscles were very rigid, or
hypertonic. The victim also had an increased heart rate, or tachycardia.
Because the [petitioner]’s drug screen was positive for opiates, Dr. Haynes
initially thought the victim was having drug withdrawal. However, the
victim’s drug screen was negative, and Dr. Haynes and fellow physicians
determined that the victim had suffered a hypoxic ischemic injury. The
victim suffered seizures, and her blood sugar was high, which indicated
significant stress or injury. The victim’s sodium was low, and Dr. Haynes
explained that babies get low sodium, or hyponatremia, from Syndrome of
Inappropriate Antidiuretic Hormone (“SIADH”), which “typically occurs
with an asphyxiating event about three days after the event occurs.”
Dr. Haynes said she spoke to the [petitioner] between 3:15 and 4:25
a.m. regarding her medical history and the circumstances of the victim’s
birth. The [petitioner] reported that she had been pregnant four times and
had delivered two children who were not in her custody. The [petitioner]
also reported that she had little or no prenatal care and denied any drug use
with the exception of Oxycodone, which she had taken for the past two
days for her finger injury. As to the victim’s birth, the [petitioner] gave Dr.
Haynes the following account of events:
She told me that she had delivered at home in the toilet. She
had had some pain, went to the bathroom, had a normal bowel
movement, then delivered in the toilet, passed out, woke up. And I’ve
written here sometime between 8:00 and 12:00 midnight. That’s
when she told me she delivered, that she wasn’t sure what time it was
because she didn’t know how long she had been passed out. She
woke up, cut the umbilical cord. She could not tell me what she used
to cut the umbilical cord. She could not tell me how long the baby
had been in the toilet. She couldn’t tell me any of the circumstances
other than the very vague details that I’m giving you. She told me
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that she tied the umbilical cord with a piece of gauze that she had on
her injured finger. That’s one thing I don’t have written down, but I
remember that because that was an unusual story for someone to tell
me. She told me she drove herself to the hospital. That was about it.
It was kind of difficult for me to talk to her. She appeared like she
was high, like she was under the influence of drugs.
Dr. Haynes said that the victim’s being born in the toilet “most
definitely” would cause asphyxia. Dr. Haynes said that the victim’s
admission temperature was “ninety-six something” and opined that a baby
born in a toilet would have had a much lower temperature. Because the
victim was not born in the hospital, no Apgar score or blood gas test could
be performed to help determine if the victim had experienced an asphyxial
event from the birthing process. She acknowledged that the [petitioner]
brought the placenta to the hospital but said that there was no evidence that
the placenta had abrupted or torn away prior to the delivery of the victim.
The victim’s umbilical cord was also examined and determined to be a
short cord, which meant it was less likely that the cord had gotten tangled
or knotted.
The State posed a hypothetical question in which Dr. Haynes was
asked to assume that the birth history provided by the [petitioner] was
accurate, in that the [petitioner] squatted over the toilet thinking she was
going to have a bowel movement but instead delivered the victim in two
pushes; that after the second push the [petitioner] pulled the victim out and
placed her on her chest before passing out; and that later the [petitioner]
regained consciousness to find the victim pink in color and crying
vigorously, both before and after she passed out. Dr. Haynes said nothing
in that history suggested that an asphyxial trauma occurred during the
birthing process. Dr. Haynes said that a baby who suffers asphyxial trauma
in utero or during the birthing process was “usually hypotonic, floppy,
non[-]responsive, doesn’t breathe or irregular gasping kind of efforts,”
which could require resuscitation. According to Dr. Haynes, conditions
that could compromise a baby during the birthing process included the
umbilical cord being wrapped around the baby’s neck or other part of the
body, which was more typical with long cords; the baby’s head being
trapped in the birth canal; the baby not being in the appropriate position to
deliver; and the placenta breaking loose. However, there was no evidence
that any of those conditions had occurred and nothing in the history
provided by the [petitioner] to suggest that the victim suffered the hypoxic
injury a day or so before birth. The victim had no bruising or injuries
- 14 -
consistent with having been trapped in the birth canal. Dr. Haynes said that
the victim’s MRI revealed “changes that were characteristic of hypoxic-
ischemic encephalopathy or an event that occurred around the time of
birth.” She explained that encephalopathy is abnormal brain function and
said that the victim’s brain injury was permanent. She said that the victim’s
MRI findings were “typical of an acute, sudden, severe episode of
hypoxia.”
Dr. Haynes said that if a baby suffered an asphyxial event in a
hospital setting, the baby could be treated with head cooling therapy, but it
must be done within six hours of the time of delivery. Any delay in seeking
that type of therapy would compromise the welfare of the baby and make
the condition worse. She said that the most important medical finding in
terms of the timing of the victim’s injury was the SIADH, which occurred
in response to swelling of the brain. She explained that SIADH typically
occurred within three days of the injury and said that the victim’s sodium
level was first noted to be low on November 3. She said that a low sodium
level is the first clue to indicate SIADH. Dr. Haynes acknowledged that
she had no way of determining exactly when the victim’s hypoxic injury
occurred because the victim was not born in the hospital.
Wendy Parrish, a registered nurse at Baptist Hospital, testified that
she obtained the [petitioner]’s medical history at 1:50 a.m. on November 1,
2006, and the [petitioner] reported that she had had two prior term
deliveries and an abortion. The [petitioner] also reported that she learned of
her pregnancy two months prior to November 1 and had been to the
Waverly Belmont Clinic twice.
Cherie Hackney testified that she was a social worker at Baptist
Hospital in 2006 and met with the [petitioner] on November 1, 2006. The
[petitioner] told Hackney that she gave birth to the victim at home on the
toilet, passed out for a period of time, and, when she woke up, retrieved the
victim from the toilet before driving herself to the hospital. The [petitioner]
gave no information as to how the victim presented at the time of birth or
after the [petitioner] regained consciousness. Hackney said that her notes
reflected that the father of the victim, “Danny,” was with the [petitioner] at
the hospital.
Jimmy Smith, an emergency room nurse at Baptist Hospital in 2006,
testified that he was working the 7:00 p.m. to 7:00 a.m. shift on October 31-
November 1, 2006, when an unidentified woman came into the hospital
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around midnight and said there was a woman in the parking lot who had
delivered a baby in the car. Smith went outside and found the [petitioner]
sitting in the driver’s seat of a white Ford Taurus in the last ambulance bay.
The [petitioner], who was dressed in a sweatsuit and smelled strongly of
soap or perfume, indicated that she had just given birth in the car in the
parking lot, and Smith saw a newborn baby wrapped in a towel in the
passenger’s seat. The baby was not crying, made no movements, and
“seemed lifeless.” He immediately took the baby into the hospital and gave
the baby to other nurses.
Smith said that he then went back outside to tend to the [petitioner]
and noticed there was no blood or “mess” that goes along with childbirth in
the car. The [petitioner] reported that she knew she had been in labor, and
when Smith asked her why she had not come to the hospital sooner, she
was “very evasive” and said “it was a personal matter.” Smith described
the [petitioner]’s emotional affect as “an extremely flat affect. She showed
. . . no real emotion, either excitement or depression.” No one else was in
the car with the [petitioner], and Smith assisted her into a wheelchair. As
he helped the [petitioner] out of the car, he noticed a “blood line” at “the
crack of her bottom” and a small amount of blood, about two inches by
three inches, on the driver’s seat of the car. He said he would have expected
a larger amount of blood if she had in fact given birth in the car. With the
[petitioner]’s permission, he moved her car from the ambulance bay to a
parking lot. The [petitioner] asked him to retrieve the placenta from under
the seat, and he located a plastic bag containing what he believed to be
bloody tissue but did not look inside the bag. He placed the bag on the
[petitioner]’s lap and wheeled her inside the hospital to the labor and
delivery department.
Smith said that he gave a statement to Detective Sarah Bruner on
January 9, 2007, and said that the only difference between his recollection
and the statement was that the statement reflected that the [petitioner] was
holding the baby, but he remembered the baby was in the passenger’s seat.
He said he had no doubt that the baby was in the passenger’s seat.
Virginia Thomas of the DCS testified that the [petitioner]’s other
children included Stephan, who was born on April 15, 1995; Stephanie,
who was born on November 13, 1997; Steven, who was born on December
2, 1998; Paul, who was born on April 8, 2000; and Jaylin, who was born in
August 2001.
- 16 -
Dr. Carol Cistola, an OB/GYN physician, testified that she examined
the [petitioner] at the Waverly Belmont Clinic on September 15, 2006. The
[petitioner] was a walk-in patient and reported that she had not received any
prenatal care. The clinic records reflected that the [petitioner] had been
advised of her pregnancy on March 16, 2006, and given an estimated due
date of November 15. The [petitioner] also saw an internal medicine doctor
at the clinic on September 12 for low blood pressure. According to the
medical history the [petitioner] provided to the internal medicine doctor,
the [petitioner] had been pregnant six times and had five deliveries.
However, the [petitioner] told Dr. Cistola she had been pregnant eight
times. Dr. Cistola’s examination of the [petitioner] showed no indication
that the baby was going to be born prematurely, and the baby’s heart rate
was normal. The [petitioner] left the clinic without getting the
recommended prenatal lab work done and did not return for follow-up
testing and treatment.
Dr. Cistola said that the [petitioner] received treatment at the clinic
three times in 1998 for another pregnancy. The [petitioner] was
hospitalized on September 26, 1998, for preterm labor and had a premature
delivery in December 1998. The [petitioner] also received treatment at the
clinic for another pregnancy in 2000 but had only two prenatal visits
although the normal number of visits for a non-high-risk mother was
thirteen. For a patient who had a prior complicated pregnancy like the one
the [petitioner] had in 1998, the number of prenatal visits would have been
as many as were needed and could have been daily.
Detective Sarah Bruner testified that she and another officer
searched Pipkins’ residence on November 22, 2006, but found no indication
of blood, and they were unable to locate the [petitioner]’s car or clothing
she had worn the night of the victim’s birth. Detective Bruner recovered
ten pink pills in a bottle labeled prenatal care, which reflected that the
prescription was filled on March 16, 2006, and written for a quantity of
thirty with four refills.
Detective Bruner said she later obtained the [petitioner]’s cellular
telephone records which reflected a number of calls made to and from the
[petitioner]’s phone on October 31 and November 1, 2006. The [petitioner]
provided no information that anyone other than she had possession of her
telephone on those days. The [petitioner] gave Detective Bruner detailed
information regarding her prenatal care with Steven and Paul but did not
discuss Jaylin. Detective Bruner obtained the [petitioner]’s Hydrocodone
- 17 -
medication from Ms. Thomas and placed it into evidence. She said that the
prescription bottle contained thirty-eight pills and that the paperwork
accompanying the prescription reflected that forty pills were prescribed and
that the prescription was filled on October 31, 2006, at 5:57 p.m.
Detective Bruner said she interviewed several witnesses, including
Jimmy Smith. Smith reported that the victim was on the [petitioner]’s lap
and that there was a towel in the seat of the car where the [petitioner] had
been sitting. Smith did not indicate that the [petitioner] had reported giving
birth in the car in the parking lot.
Cheryl Gooch, a DCS case manager in 2006, testified that the
department received a referral concerning the victim on November 2, 2006.
She was the initial case manager assigned to the case and interviewed the
[petitioner] at the DCS office, prior to Virginia Thomas’ interview at the
hospital. The [petitioner] reported that she had an injured finger for which
pain medication had been prescribed, but she did not inform the doctor that
she was pregnant. The [petitioner] gave the medication to Gooch, and she
turned it over to Thomas. The [petitioner] told Gooch she was about six or
seven months along with her pregnancy before she found out she was
pregnant. Gooch said the [petitioner] told her that Danny Gooch had come
by her residence before she gave birth to the victim, but no one was present
during the birth. The [petitioner] reported that she delivered the victim at
home on the toilet between 8:30 and 9:00 p.m. and put the baby on her
chest before passing out for an unknown period of time. The [petitioner]
said she went to the hospital around midnight. Gooch asked the [petitioner]
several times for information regarding her other children, but the
[petitioner] refused to disclose their names.
Dr. Kendall Graham, a neonatologist at Baptist Hospital, testified
that he was one of the primary physicians who began treating the victim on
November 1, 2006. He described the victim’s condition as “jittery and kind
of irritable, difficult to console.” The doctors initially thought the victim
was going through drug withdrawal because of the [petitioner]’s positive
drug screen and the history provided by the [petitioner] that she had been
taking a narcotic for pain relief prior to delivery. However, during the next
three days, the victim began showing signs of seizure activity and SIADH,
which was common in infants who had suffered an asphyxia event. The
doctors realized the victim was not suffering from a narcotic withdrawal
but was showing symptoms consistent with having suffered some type of
asphyxia around the time of birth. An EEG performed on the victim on
- 18 -
November 3 revealed seizure activity, and an MRI performed on November
14 or 15 showed that the victim had suffered injury to the deep parts of the
brain. Dr. Graham said that the pattern of the victim’s brain injuries was
consistent with birth asphyxia.
Dr. Graham said that infants who suffer a serious hypoxic injury
during the birthing process do not cry vigorously. He said that the victim
had suffered “a mild to moderate” permanent hypoxic injury “very near the
time of birth.” Based upon the information the doctors had, there was no
definitive way to determine whether the victim’s hypoxic injury occurred
before birth, at birth, or after birth. However, Dr. Graham said that he was
“comfortable” in saying that the victim’s injury occurred within a few
hours before birth through the time of birth to a few hours afterwards. He
said that the [petitioner]’s use of Hydrocodone the night of the victim’s
birth did not cause the victim’s hypoxic injury.
Dr. Robert Reece’s trial testimony reiterated that given at the pretrial
hearing, and he acknowledged that he had been retained by the State to
consult in the case. He further said that when evaluating whether a child
suffered an asphyxial event, he looked to a broad spectrum of information,
including information regarding the child’s siblings, social service
investigations of the family, prior police investigations, and prior medical
histories of the family to determine if there were any predisposing factors
for certain medical conditions. He reviewed the victim’s medical records
from Baptist Hospital, the police reports, social service reports, the prenatal
history provided by the [petitioner], and the medical histories involving
other children and agreed with the medical assessment that the victim
sustained a hypoxic injury. He said it was “difficult” to determine the time
of the injury but agreed with Drs. Haynes and Graham that it occurred at or
around the time of birth. Dr. Reece said that he reviewed all of the
historical information provided by the [petitioner] and observed that “the
history was changing. There were several different accounts of what
happened,” which was “a big red flag” to him. Dr. Reece said that he had
“a very strong feeling” and had determined to a reasonable degree of
medical certainty that the victim’s injury was the result of an induced
suffocation. He related the factors he considered in reaching that
conclusion:
[T]he fact that the baby was, first of all, born in a toilet, then
cried immediately after the baby was born according to the mother’s
account. Then there was a passing out of the mother according to her
- 19 -
account during which time we don’t know what was going on with the
baby. Then there was no call for help, no call to 911 to EMS to come
and help with the baby. And then there was an almost four hour delay
between the time that we are told the baby was born and the arrival at
the emergency department. And then even at the emergency
department there was a delay of sitting in the car for a good period of
time and being discovered there by one of the nurses from the
hospital. So all of this makes me concerned about what was going on
in that interval.
Dr. Reece said that the [petitioner]’s giving birth at home and not
seeking medical assistance in a timely fashion suggested that “there wasn’t
a whole lot of attention being given” to the victim. In evaluating child
abuse and neglect cases, a delay in seeking medical care was “[a]bsolutely”
something he saw frequently. Dr. Reece said that the [petitioner]’s delay in
seeking medical care, failure to call EMS at the time of delivery, “spotty”
prenatal care, and failure to make arrangements for a hospital delivery
constituted “a fairly neglectful approach to a newborn baby.”
Dr. Reece said he had delivered approximately 150 babies and had
been present when birth asphyxia occurred. In those situations, the
newborns usually had a “weak cry if a cry at all.” Nothing in the history
provided by the [petitioner] or in the medical findings indicated that the
victim suffered the asphyxial trauma prior to birth or during the birthing
process. There was no meconium on the victim’s skin which indicated that
the victim was “born healthy and alive and vigorous.”
Dr. Reece identified a policy statement from the American Academy
of Pediatrics entitled Distinguishing Sudden Infant Death Syndrome From
Child Abuse Fatalities, published in July 2006, which was admitted into
evidence.
Clechette Frazier-Weir, the victim’s foster mother, testified that the
victim came into her care on November 14, 2008, at the age of two, and
weighed only fifteen pounds, could not crawl, walk, or talk, and could
“[b]arely” sit up on her own. She said that at the time of trial, the victim
weighed 27.14 pounds, had cerebral palsy, and was developmentally
delayed. The victim was able to walk with the aid of special shoes and a K-
walker when in crowds and could talk in complete sentences. Ms. Frazier-
Weir explained that she “constantly” worked with the victim and described
the type of care the victim needs:
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In a day we do over eighty exercises a day. Feeding was
taking like an hour and a half . . . for her to really feed herself. To get
all of her therapy at home and then going to physical therapy and
getting it done -- because what they implement at Vanderbilt I take
home and just keep adding to it. So it’s a day’s work.
In addition, the victim received speech therapy and had to see a
neurologist and orthopedic doctor annually. Ms. Frazier-Weir said that she
planned to adopt the victim.
The [petitioner] elected not to testify and presented no proof. The
jury convicted her of aggravated child neglect as charged in Count 1 of the
indictment and of the lesser-included offense of reckless aggravated assault
in Count 2, which the trial court merged with the neglect conviction.
At the sentencing hearing, Ms. Frazier-Weir testified that the
victim’s doctors had informed her that the victim would always need
assistance and would never be able to live independently.
Calloway, 2014 WL 1394653, at *1-15 (footnotes omitted).
B. Post-Conviction Proceedings
On March 30, 2015, the petitioner filed a pro se petition for post-conviction relief
claiming, in part, that her conviction was based upon the use of evidence obtained
pursuant to an unlawful arrest and that her due process rights were violated based upon a
“tainted” prosecutorial investigation. Upon review of the petition, the post-conviction
court found the petitioner failed to provide any facts supporting her allegations. As such,
the post-conviction court ordered the petitioner to file an amended petition for relief in
which she was to allege facts supporting the grounds set forth in her petition. The
petitioner complied, and filed an amended petition for post-conviction relief on May 8,
2015.
In the amended petition, the petitioner asserted prosecutorial misconduct,
ineffective assistance of counsel, and that she was not given proper Miranda warnings
prior to her arrest. As to her ineffective assistance of counsel claims, the petitioner
alleged trial counsel failed to present evidence on her behalf at trial and prevented her
from testifying at trial. Specifically, the petitioner argued trial counsel “should have
subpoenaed the medical professional from the hospital that told the [p]etitioner she was
an overly concerned parent because she brought her child into the emergency room
- 21 -
repeatedly” in an effort to prove “that she was concerned for her child and wanted to
protect and care for her.” On May 21, 2015, the post-conviction court appointed counsel
and entered a preliminary order finding the petition “may present a colorable claim.”
Post-conviction counsel then filed an amended petition alleging trial counsel: (1)
failed to present “legitimate defenses” on behalf of the petitioner; (2) failed to “properly
interview” or counsel the petitioner prior to trial; (3) failed to “properly investigate
relevant issues” or witnesses “who may have been present during the commission of this
crime and what their perceptions and memory were to these events;” (4) failed to
“properly advise” the petitioner regarding her right to testify; (5) failed to “properly
explain” the trial process, discovery, or the penalties of conviction to the petitioner; (6)
failed to “properly research, qualify and prepare defense expert in neonatology, Dr.
Jeffrey Pietz;” and (7) failed to “properly identify the need for an expert in child abuse to
present in the defense of the [p]etitioner at trial.” The petitioner also alleged appellate
counsel failed to “adequately raise all issues in [the] [p]etitioner’s direct appeal.”
In its denial order, the post-conviction court summarized the evidentiary hearing
testimony, as follows:
At the evidentiary hearing, the trial transcript and relevant transcripts
from the hearings in this case - some of which overlapped with case no.
2004-D-2901 - were admitted into evidence along with the testimony of
[t]rial [c]o-[c]ounsel, [lead counsel] and [co-counsel]. [The] [p]etitioner
elected not to testify at the post-conviction evidentiary hearing.
A. [Lead Counsel]
[Lead counsel] is the elected Public Defender for Nashville, and has
served in this capacity for the past eight years, which included some of the
time she served as the [p]etitioner’s trial counsel. When asked about the
defense strategy for trial, [lead counsel] responded that the State could not
prove that the [p]etitioner had neglected or caused injury to her child.
[Lead counsel] elaborated that the defense position was no medical proof
existed to establish whether the injuries to the child occurred during the
child’s birth, prior to birth, or after birth; thus, the State could not prove
cause of the medical condition.
[Lead counsel] agreed that trying the case required experts, and
fairly early on, the State indicated that it intended to call Dr. Robert Reece,
and the State had involved two neonatologists with the intention at least one
would testify - ultimately both were called as [the] State’s witnesses at [the]
- 22 -
[p]etitioner’s trial. [Lead counsel] testified that Dr. Reece was a
pediatrician and, therefore, qualified in that field and qualified as an expert
in child abuse. She thought he may have been qualified as an expert in
child neglect as well, but she was not certain.
[Lead counsel] testified that she and her co-counsel researched
potential experts for her client. They decided to hire neonatologist Jeffrey
Pietz. [Lead counsel] did not recall looking for an expert in child abuse or
neglect. She described the defense strategy was focused on the State’s
inability to prove (1) when the [victim’s] conditions occurred and (2) what
produced the injuries when [the victim] arrived at the hospital. [Lead
counsel] testified that, in her view, the issue was a medical question. She
noted that “right before the trial” - either the week prior to trial or the week
of the trial - the thought occurred to her that the defense may have made a
mistake and they may need a child abuse expert to rebut Dr. Reece.
In attempt to cure what was described as a possible strategic
mistake, [lead counsel] described filing additional motions on the “eve of
trial” because she felt that the defense had not received a full hearing on Dr.
Reece. [Lead counsel] testified that they were unsuccessful with the
motions and raised the issues on direct appeal. [Lead counsel]
acknowledged that the defense did not request to continue the trial to seek
an expert. She noted it has been six years since she tried the case, so she
does not recall when the thought occurred to her to have a child abuse
expert - rather than a medical expert - to rebut Dr. Reece. She stated that in
hindsight, if she had to do the trial over, she would not look at it as a case
of “dueling neonatologists” but rather dueling child abuse experts.
[Lead counsel] described how she vetted Dr. Pietz as a potential
expert. She was not sure where she first obtained his name, but thought it
was from National Child Abuse Defense & Resource Center network.
[Lead counsel] testified that she typically runs a Westlaw search on all
experts, and Dr. Pietz comes up in several reported opinions.
[Lead counsel] had received Dr. Pietz’s report and believed he was
prepared for trial - until an issue arose either the week of the [p]etitioner’s
trial or the week prior to trial. [Lead counsel] was not certain as to the
timing. She testified that as Dr. Pietz travelled to Nashville, she felt that he
had closely read the materials that the defense had sent him; he had
indicated he reviewed the materials based on the report he generated. She
further testified that when he arrived, or possibly when they spoke the week
- 23 -
before, Dr. Pietz seemed to offer additional opinions related to [the
victim’s] conditions. Dr. Pietz rendered these additional opinions based on
notations he saw in [the] [p]etitioner’s medical file, and he referenced other
records previously provided to him that were “impacting conclusions” that
he had drawn. [Lead counsel] testified that in a way she felt like he was
giving “in some respects a better, stronger opinion.” Dr. Pietz, however,
provided a significant finding shortly before trial that he did not write in his
report or discuss with counsel on any prior occasion. [Lead counsel] felt
like Dr. Pietz “just discovered” the finding on his flight to Nashville, which
she found troubling.
When asked to elaborate why she found Dr. Pietz’s additional
finding that benefited the defense to be troubling, [lead counsel] explained
that the defense already had provided Dr. Pietz’s report to the State as
required prior to trial. Further, since she does not have a medical
background, conclusions he made were beyond the scope of her expertise
and she needed time to analyze his additional findings in light of the
planned defense strategy and time to compare the findings to what the other
neonatologist who treated [the victim] had found.
[Lead counsel] testified that Dr. Pietz’s additional opinions before
trial impaired the defense’s ability to conduct an effective cross-
examination and impaired the defense’s ability to put Dr. Pietz on the
witness stand due to concerns he would offer a different opinion than what
he put in his report, which would undermine his credibility and “open more
discussion” should the State call the neonatologist for rebuttal proof. Thus,
Dr. Pietz created a situation that [lead counsel] said left the defense “unsure
about the wisdom of calling him” and raised concerns about whether
calling Dr. Pietz as an expert witness would hurt her client’s defense rather
than helping as intended.
When trying to pinpoint when she first learned of Dr. Pietz’s
additional findings, [lead counsel] recalled her concerns were raised the
week before trial or the week of, but she knew concerns developed when
Dr. Pietz arrived to town, citing information gleaned from a dinner meeting
her co-counsel had with Dr. Pietz after [co-counsel] picked up their expert
from the airport. [Lead counsel] testified she arrived at the office the next
morning “having panic over a conversation” that [co-counsel] said he had
with Dr. Pietz at dinner that differed from prior discussions the defense had
with Dr. Pietz.
- 24 -
[Lead counsel] testified that in hindsight she felt she did not do
everything she should have done concerning Dr. Pietz and recalled that he
had been difficult to reach prior to trial. She stated that she should have
ensured he focused on the case sooner than he did, but noted in other
respects that she “had no idea” he had not read the records closely when the
defense provided them based on the report he prepared in May.
When asked when did she realize the need for a child abuse expert,
[lead counsel] responded that she was not certain when she recognized that
need but it may have well been during the trial. She explained the defense
had been focused on the medicine and she believed the State could not win
on the medicine, noting, “the State won on bringing in the hired gun.”
[Lead counsel] agreed with [p]ost-[c]onviction [c]ounsel that the
defense should have had an expert in the same field.
[Lead counsel] agreed that she explained the trial process and went
over the State’s evidence with her client. She also agreed that while she
does not have independent recollection of going over Momon criteria with
[the petitioner], it is her standard practice to discuss with her clients their
right to testify and review the pros and cons of doing so. [Lead counsel]
was unsure whether she or [co-counsel] reviewed [the petitioner’s] right to
testify with her.
During cross-examination, [lead counsel] testified that she has
served as an attorney with the Nashville Public Defender’s Office for
approximately 11 years. She estimated that over her career she has handled
40 trials, including some death penalty cases. [Lead counsel] agreed that
this case was not the first time she represented [the petitioner]; [lead
counsel] served as one of the trial counsel when her office was appointed in
late 1999, to represent [the petitioner] on three first degree murder cases.
[Lead counsel] acknowledged that she represented the [p]etitioner on her
first trial in May 2002, for some of the severed counts in case no. 2004-D-
2901, where the [p]etitioner was convicted, but the conviction was reversed
and remanded on appeal. [Lead counsel] also represented the [p]etitioner
during the second trial / re-trial of those account that resulted in a hung
jury.
[Lead counsel] agreed that she reviewed the discovery with the
[p]etitioner although she was not sure if she provided the [p]etitioner with a
copy, citing that it is sometimes dangerous to give discovery to clients
- 25 -
charged with “A” felonies because other inmates may try to become State
informants.
In light of [the] [p]etitioner’s allegations that trial counsel did not
meet with her, the State inquired if [lead counsel] brought her time sheet to
the hearing. [Lead counsel] confirmed she did and testified that her records
for this case file reflect 14 meetings. [Lead counsel] qualified her
statement, explaining that the time sheet shows only a fraction of their
consultations because (1) [the petitioner] had another case pending at the
time, and [lead counsel] did not log meetings from that case into this case
file even though some of the meetings involved discussions about both
cases; (2) due to the length of her representation of [the petitioner], [lead
counsel] stopped counting their meetings after a certain date, and (3) [lead
counsel] often meets with clients on court appearance dates, and those
meetings may only be logged as court time in the client file. Thus, the time
sheet does not accurately represent the amount of time she and [the
petitioner] met - the calculations represented in this case file significantly
underrepresent the amount of time she met with her client during the court
of her representation.
During court questioning, [lead counsel] agreed that Dr. Pietz sat in
court and listened to at least one of the neonatologists who testified - the
one she believes the State presented out of order due to scheduling because
Dr. Pietz was not in court to hear from both neonatologists. [Lead counsel]
testified that Dr. Pietz tried to assist her during cross-examination of the
State’s medical experts, but the problem she had was his advice and
assistance was based on conclusions and ideas he had during his flight to
Nashville, and [lead counsel] was not involved in the conversation [co-
counsel] had with Dr. Pietz upon Dr. Pietz’s arrival. Thus, she explained
that it was difficult to incorporate his new insights and process them during
the trial.
[Lead counsel] agreed that she submitted a Rule 13 funding request
for Dr. Pietz, and information as to why the defense needed his assistance
would be contained in the motion she filed under seal with the court.
[Lead counsel] acknowledged that her client was not found guilty of
child abuse; the jury convicted the [p]etitioner of aggravated child neglect.
[Lead counsel] was not sure how many pre-trial hearings were held
in this case, but testified that throughout the case she requested more
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hearings as to Dr. Reece and wanted a McDaniel hearing regarding Dr.
Reece’s ultimate opinion. [Lead counsel] acknowledged hearings were
held on some issues such as whether [counsel for the State] committed
violations that prevented Dr. Reece from testifying. When the Court noted
that the defense pursued these issues on appeal, [lead counsel] agreed that
issue “was explored” on appeal but she felt the Court of Criminal Appeals
“dismissed it.”
B. Co-Counsel
[Co-counsel] testified that he no longer works at the Metro Public
Defender’s Office, but he worked in the capacity of an Assistant Public
Defender when he represented the [p]etitioner, and he served as second
chair alongside [lead counsel]. [Co-counsel] describes his responsibilities
as working with expert witness Dr. Pietz and cross-examining some of the
State’s witnesses such as Detective Sarah Bruner and some of the civilian
witnesses. He also handed (sic) the motion for judgment of acquittal.
[Co-counsel] noted that while he had not reviewed Dr. Pietz’s
curriculum vitae in a while, Dr. Peitz’s expertise is neonatology, and when
preparing for trial, [lead counsel] and [co-counsel] agreed that a
neonatologist expert was necessary.
Since Dr. Pietz was not local, they did not meet in person during trial
preparation and primarily communicated through email and sent records by
land through “snail mail.” They also spoke over the phone. [Co-counsel]
recalled that he and [lead counsel] had some frustration with Dr. Pietz
making himself available for consultations.
When Dr. Pietz came to Nashville for the trial, [co-counsel] picked
up Dr. Pietz from the airport. [Co-counsel] testified that at that time Dr.
Pietz offered an opinion on the case that differed from the opinion he had
put in his written report, which had been provided to the State. [Co-
counsel] testified that while the changes in Dr. Pietz’s opinion were not
detrimental to [the petitioner], [co-counsel] tried to explain to Dr. Pietz how
his “more expanded opinion” would appear to the jury.
[Co-counsel] testified that had Dr. Pietz relayed his changes a few
weeks prior to trial, the defense could have asked for an amended report.
However, since the changes were discovered “mid-trial”, the defense had to
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make a tactical decision; thus, they decided not to call Dr. Pietz as a trial
witness.
When asked if in hindsight would he have been more persistent in
his contact with Dr. Pietz or done anything else different, [co-counsel]
responded, “I wish we had not arrived where we did.” [Co-counsel]
testified that Dr. Pietz provided a report that was useful, but in light of the
fact “he changed his opinion last minute”, [co-counsel] wished they “were
working with someone different.”
When asked whether a neonatology expert was the only type of
expert the defense considered, [co-counsel] replied that post-conviction
counsel must be referring to the Dr. Reece testimony, and if [co-counsel]
were to retry the case, he “would try to find someone who would mirror Dr.
Reece to offer opposite opinion of Dr. Reece.” [Co-counsel] testified that
the defense knew of the State’s intention of calling Dr. Reece prior to trial,
but the defense did not have the intention of calling a refuting expert at the
time.
During cross-examination by the State, [co-counsel] agreed that
when calling an expert witness one never knows exactly everything the
expert may say. [Co-counsel] also agreed that he was unable to say
whether his client would have been acquitted had the defense called an
expert to counter Dr. Reece - [co-counsel] was only able to testify that with
20/20 hindsight, he could only say that calling a different expert is
something he would do differently if he re-tried the case.
The [c]ourt pointed during its questioning that Dr. Reece was not a
surprise witness because he had been involved in the case for years. [Co-
counsel] responded the defense was aware of Dr. Reece’s opinions, but he
thought the issue was the extent of Dr. Reece’s trial testimony. As to why
the defense did not hire an expert in child abuse, [co-counsel] was unable to
provide a definitive answer.
When asked why the defense did not put Dr. Pietz on as a witness if
his changed testimony was not detrimental but to the defense’s favor, [co-
counsel] cited “a couple of things.” First, [co-counsel] testified that Dr.
Pietz’s revised opinion “was a contradiction to what he had previously said
rather than expansion.” Second, he testified that the defense “had actually
gotten out of the experts everything we needed” and that it was a “tactical
decision” not to call Dr. Pietz.
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[Co-counsel] testified that based on the information provided by the
State, medically, the hypoxic injury could have been prior to birth, which is
why the defense did not focus on a child abuse and neglect expert, but
focused on medical evidence.
Finding the petitioner failed to meet her burden of proof, the post-conviction court
denied relief, and this timely appeal followed.
Analysis
On appeal, the petitioner asserts the post-conviction court erred in denying her
petition for post-conviction relief, alleging trial counsel provided ineffective assistance of
counsel by failing to “properly research, qualify and prepare defense expert in
neonatology” and failing to “properly identify the need for an expert in child abuse” on
behalf of the defense. In contrast, the State contends the petitioner failed to present
sufficient evidence of trial counsels’ deficiencies or how their alleged deficiencies
prejudiced her trial. Upon our review, we agree with the State.
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden
of proving his allegations of fact by clear and convincing evidence. See Tenn. Code Ann.
§ 40-30-110(f). “‘Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).
Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State,
245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the
post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the
facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which
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presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s findings of fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution both require that criminal defendants receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted).
When a petitioner claims he received ineffective assistance of counsel, he has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466
U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
With regard to the standard, our Supreme Court has held:
[T]he assistance of counsel required under the Sixth Amendment is
counsel reasonably likely to render and rendering reasonably effective
assistance. It is a violation of this standard for defense counsel to deprive a
criminal defendant of a substantial defense by his own ineffectiveness or
incompetence . . . Defense counsel must perform at least as well as a lawyer
with ordinary training and skill in the criminal law and must
conscientiously protect his client’s interest, undeflected by conflicting
considerations.
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Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at
934-35).
When reviewing trial counsel’s performance, this Court “must make every effort
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that
time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at
689). The fact that a trial strategy or tactic failed or was detrimental to the defense does
not, alone, support a claim for ineffective assistance of counsel. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is given to sound tactical
decisions made after adequate preparation for the case. Id.
To satisfy the prejudice prong of the test, the petitioner “must establish a
reasonable probability that but for counsel’s errors the result of the proceeding would
have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). In
order to prevail, the deficient performance must have been of such magnitude that the
petitioner was deprived of a fair trial and that the reliability of the outcome was called
into question. Finch, 226 S.W.3d at 316.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
The petitioner presents intermingled claims on appeal challenging trial counsels’
use, or lack thereof, of expert witnesses at trial. Initially, the petitioner asserts trial
counsel failed “to properly present a cohesive defense” by not seeking a child abuse and
neglect expert to testify for the defense despite knowing the State planned to present their
own child abuse and neglect expert, Dr. Robert Reece. At the evidentiary hearing,
however, the petitioner failed to present a child abuse and neglect expert to testify on her
behalf. In order “[t]o succeed on a claim of ineffective assistance of counsel for failure to
call a witness at trial, a post-conviction petitioner should present that witness at the post-
conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (citing Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). “As a general rule, this is the only
way the petitioner can establish that . . . the failure to have a known witness present or
call the witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.” Id. Because the petitioner failed to call a child abuse and
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neglect expert at the post-conviction hearing, she cannot meet her burden. See id. This
issue is without merit.
Similarly, the petitioner also takes issue with trial counsels’ decision to rely on a
medical expert, Dr. Pietz, rather than a child abuse and neglect expert like the State
presented in Dr. Reece. However, at the evidentiary hearing, lead counsel explained her
strategy regarding the defense’s decision to employ Dr. Pietz, an expert in neonatology.
The post-conviction court summarized lead counsel’s strategy as follows:
[Lead counsel] testified that the defense was aware early in the case
that the State intended to call Dr. Robert Reece at trial and had indicated at
least one of the two neonatologists would testify as well. The trial
transcript . . . show[s] that the [c]ourt qualified Dr. Reece as an expert in
“pediatrics and child maltreatment” and both neonatologists, Dr. Mary
Haynes and Dr. Kendall Graham, testified at trial.
Based on the State’s proof, [lead counsel] believed, and testified at
the post-conviction hearing, that no positive medical proof showed the
cause of the [victim’s] injury; thus, the defense’s position was the State was
unable to (1) establish when the injury occurred - whether it happened prior
to birth in the womb, during labor/birth, or at some point after birth or (2)
causation. In short, the State could not make its case based on the medical
proof. Accordingly, when [lead counsel] researched experts, she focused
on a medical expert to refute the State’s neonatologists, and the defense
hired neonatologist Dr. Jeffrey Pietz.
As noted by the post-conviction court, lead counsel explained her belief that the
medical proof, and planned testimony of Dr. Pietz, supported the defense strategy of
attacking causation as the medical proof failed to pinpoint when the victim’s injuries
occurred. The post-conviction court found “[t]rial [c]ounsels’ testimony credible and that
the defense made a strategic decision based on reasonable investigation and information
they had at the time.” Simply because trial counsels’ strategy was unsuccessful does not
render their assistance ineffective. Cooper, 847 S.W.2d at 528; see also Howell, 185
S.W.3d 319 at 326. Further, the post-conviction court held “the [p]etitioner has presented
no proof that a child abuse expert was available to the defense, would have testified
favorably for the defense, or that this proposed expert testimony would have changed the
outcome of [the] [p]etitioner’s trial.” We agree. The petitioner has failed show by clear
and convincing evidence how trial counsels’ failure to call a child abuse and neglect
expert constituted ineffective assistance of counsel. See Strickland, 466 U.S. at 694;
Pylant, 263 S.W.3d at 869. This argument is without merit.
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Additionally, the petitioner argues trial counsel was ineffective in preparing Dr.
Pietz for trial and, in the end, not calling him as a witness at trial. As explained above,
trial counsels’ evidentiary hearing testimony provided insight into their defense strategy
and the reasoning behind their expert witness choices. However, trial counsel provided
further explanation as to why they chose not to call Dr. Pietz as a witness at trial. The
post-conviction court summarized trial counsels’ reasoning, as follows:
Based on the report Dr. Pietz supplied, it appeared that he had
reviewed all the materials provided by the defense. [Lead counsel] and [co-
counsel] testified that it was within a week of trial, at most, that Dr. Pietz
expanded his opinion, causing concern - and only when he arrived in
Nashville to testify at trial major issues arose.
Both trial counsel testified that the later opinions given by Dr. Pietz
before trial were outside the scope of the report the defense had provided to
the State. [Lead counsel] testified that Dr. Pietz’s newly realized findings
significantly impaired the defense’s ability to conduct effective cross-
examination of the State’s neonatologists and to present Dr. Pietz as a
defense witness out of concern he would offer different opinions that would
undermine his credibility and open up opportunities for the State to present
rebuttal proof. [Co-counsel] testified that Dr. Pietz’s newly realized
findings were in “contradiction . . . rather than an expansion” to what Dr.
Pietz and (sic) previously said. [Co-counsel] further testified that the
decision to not call Dr. Pietz was a tactical decision and the defense had
gotten out of the experts all they needed.
As noted above, trial counsels’ testimony indicates they retained Dr. Pietz as an
expert in neonatology to support the defense theory that the medical proof failed to
establish when the victim’s injuries occurred, either before, during, or after birth. In
doing so, trial counsel provided Dr. Pietz with the appropriate materials upon which to
render an opinion. When trial counsel learned Dr. Pietz changed his opinion in the days
before trial, they then made the strategic decision not to call him as a witness. In
deciding not to call Dr. Pietz to testify, trial counsel reasoned Dr. Pietz’s wavering
opinion may cause the jury to question his credibility. Additionally, trial counsel
believed they effectively cross-examined the State’s expert witnesses, thus rendering Dr.
Pietz’s questionable testimony unnecessary. The post-conviction court found trial
counsels’ strategy to be reasonable, and nothing in the record preponderates against the
findings of the post-conviction court. See Tidwell, 922 S.W.2d at 500. Furthermore, the
petitioner did not present Dr. Pietz at the evidentiary hearing, and the petitioner cannot
meet her burden as a result. Pylant, 263 S.W.3d at 869. The petitioner’s claim that trial
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counsel failed to properly prepare and utilize Dr. Pietz as an expert witness in
neonatology is without merit.
In denying post-conviction relief, the trial court stated, “[the] [p]etitioner raised
several grounds within [her] ineffective assistance of counsel claim; however, [she] failed
to establish by clear and convincing evidence that [t]rial [c]ounsel was ineffective or that
[she] was prejudiced by any alleged deficiency.” We agree with the post-conviction
court’s assessment of the petitioner’s claims. No evidence exists in the record to support
her attack on trial counsels’ performance or how the alleged deficient performance
affected the outcome of her trial. See Strickland, 466 U.S. at 687. The petitioner is not
entitled to post-conviction relief for her claim of ineffective assistance of counsel.
CONCLUSION
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
____________________________________
J. ROSS DYER, JUDGE
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