Richard Trehern v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 26, 2013
RICHARD TREHERN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hawkins County
No. 11-CR-317 John F. Dugger, Jr., Judge
No. E2012-01475-CCA-R3-PC - Filed September 27, 2013
Petitioner, Richard Trehern, appeals from the post-conviction court’s denial of his petition
for post-conviction relief following an evidentiary hearing. On appeal, Petitioner contends
that the post-conviction court erred in denying the petition because trial counsel rendered
ineffective assistance of counsel. More specifically, Petitioner contends that trial counsel
was ineffective (1) by failing to adequately communicate and meet with him to prepare for
the case; (2) by failing to attack the credibility of Petitioner’s wife on cross-examination; (3)
by failing to advise him that the crime for which he was charged had no release eligibility
date; (4) by failing to adequately advise him of the consequences of Momon; and (5) by
failing to obtain an expert witness to rebut the State’s theory of shaken baby syndrome.
Following our review of the record, we affirm the denial of relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OBERT W. W EDEMEYER, JJ., joined.
Francis X. Santore, Jr., Greeneville, Tennessee, for the appellant, Richard Trehern.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and Alex Pearson, Assistant District
Attorney General, for the appellee, the State of Tennessee.
OPINION
I. Background
The facts underlying Petitioner’s conviction as recited by this court on direct appeal
are as follows, and Petitioner is referred to as “the Defendant:”
The Defendant married Michelle Trehern in Alabama. The couple
divorced in November 2006, and Trehern moved back to Tennessee. She gave
birth to the victim on December 20, 2006. The couple attempted to reconcile.
The Defendant moved to Tennessee and began living with Trehern on March
5, 2007.
Dr. Stanley Giles testified that he was the victim’s pediatrician. He first
saw the victim when she was six days old. He saw the victim again on April
2, 2007, and she had a fever of 101 degrees, a runny nose, a cough, diarrhea,
and she was spitting up. The victim weighed fifteen pounds and four ounces.
No injury or trauma was reported. He next saw the victim on April 11, 2007,
for a fever of 103 degrees. The victim was sleeping a lot, was difficult to
wake, did not want to eat, and seemed exhausted and inactive. The victim’s
mother reported that when she changed the victim’s diaper, the victim shook
her arms. The victim’s mother had called a nurse at Wellmont Health Systems,
and the nurse thought the victim might have experienced a seizure. There was
no history of injury or trauma, and because the victim was losing weight, Dr.
Giles made the diagnosis of “failure to thrive.” He ordered a complete blood
count, a basic metabolic panel, and thyroid testing, but other than a minimally
elevated white blood cell count, the test results were normal. There was no
evidence of a bleeding disorder, blood disorders, kidney disorder, or diabetes.
On cross-examination, Dr. Giles testified that the victim had weighed
five pounds and fourteen ounces at her six-day visit. The victim’s birth weight
had been six pounds and five ounces, but Dr. Giles said that it was normal for
a newborn infant to lose ten to twelve ounces after birth. Dr. Giles’s partner,
Dr. Fuller, examined the victim at seven weeks of age for a possible umbilical
hernia, and the victim weighed eleven pounds and six and one-half ounces.
Dr. Giles examined the victim at two months of age and detected a heart
murmur, the umbilical hernia, and a bad diaper rash. He referred the victim to
a cardiologist. He also referred her to physical therapy for congenital
torticollis, which involved the victim’s neck muscles being pulled from the left
or right. He said the condition could occur from positioning in the crib or from
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stretching the muscles during birth. Otherwise, the victim appeared to be
active, responsive, and developing normally. He did not detect any bruising
or evidence of trauma.
Dr. Christopher Arnold Landis testified that he was the emergency
room physician at Wellmont in Hawkins County. He was not working on
April 7, 2007, when the victim was seen in the emergency room, but he
reviewed the records from that visit. The victim’s mother had reported that the
victim would not eat or sleep and had a runny nose and diarrhea. He said that
no history of injury or trauma was noted. Dr. Landis saw the victim in the
emergency room on April 18, 2007, and admitted her for possible seizure
activity. The victim remained overnight for observation, but no seizure
activity was recorded. There was no indication of trauma or injury. Dr.
Landis also ordered a complete blood count and a chemistry panel, which were
normal except for a slightly elevated white blood cell count. He also referred
the victim to Dr. Christopher Calendine, a pediatrician, for observation. He
said Dr. Calendine or Dr. Calendine’s nurse practitioner had noted the victim
had an ear infection. He said Dr. Calendine had conducted a urinalysis which
indicated a possible urinary tract infection. He found no source for any
seizures.
On cross-examination, Dr. Landis testified that he did not review the
victim’s emergency room records from April 7 at the time of the victim’s April
18 visit. He was unaware until later that the victim had been seen in the
emergency room on April 7. Dr. Landis explained that there was no predictor
for when a seizure would occur. The victim’s mother had described the
victim’s seizure as a generalized jerking and holding of the breath or not
breathing. He did not observe any bruising or signs of abuse, and he said there
was no recorded abuse. He said the victim looked like a baby who did not feel
well, “just kind of sleepy, lying there in no apparent distress.” The victim’s
pupils were normal.
Dr. Donald Sleeter testified that he was an emergency medicine
physician at the Hawkins County Emergency Department. He saw the victim
in the emergency room on April 21, 2007. He said the victim was reported to
have experienced another seizure episode which lasted five to ten seconds. He
believed the seizure was tonic, meaning that the victim’s muscles flexed and
then relaxed. He reviewed the victim’s previous admission records and
ordered a CT scan of the victim’s head. He did not observe any physical signs
of trauma or injury. The victim appeared to be awake and relatively healthy.
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He said the victim had already been scheduled for a follow-up appointment
with a neurologist. He said that Dr. Gash, a radiologist with NightHawk
Services in Knoxville conducted the “wet read,” or initial review of the
victim’s CT scan. The scan showed large collections of blood on both sides
of the brain, one being 1.5 centimeters and the other was 5 millimeters. The
scans showed areas of decreased density, meaning that the blood there was
older, or chronic. Upon Dr. Calendine’s recommendation, Dr. Sleeter
transferred the victim to the pediatric intensive care unit at Johnson City
Medical Center.
On cross-examination, Dr. Sleeter testified that the victim appeared
active and alert. He said her pupils were equally reactive and normal.
However, he did not perform a funduscopic examination of the victim’s eyes.
He said the CT scan did not show evidence of blunt trauma, but only the large
subdural fluid collections. The victim’s fontanels appeared normal.
Dr. Judson Gash testified that he was a radiologist with the Association
of University Radiologists and the University of Tennessee. He said he read
a chest x-ray of the victim conducted on April 18 and a head CT scan of the
victim conducted on April 21. He said that the areas of linear hyperdensity, or
brightness, on the CT scans represented blood. He said that the brighter the
density, the more recent the bleeding. He said that an acute hemorrhage was
one that had occurred within a few hours to a few days before the scan. Dr.
Gash described three areas of abnormality. The first was an interspheric
hemorrhage, which meant that it was between the hemispheres of the brain,
and it was acute. The second area of abnormality was a low density or chronic
subdural hematoma over the victim’s right cerebral hemisphere. This area of
old hemorrhage had pushed the brain away from the skull. The third area of
abnormality was an intermediate collection of blood over the left frontal lobe.
This area of hemorrhage could have been subacute, or several weeks old, or
it could have been an old hemorrhage with a new hemorrhage in it. He said
that the hematomas had different ages and that the most likely cause was non-
accidental head injury, or shaken baby syndrome. He said that based upon his
findings, the victim had suffered more than one injury.
On cross-examination, Dr. Gash testified that non-accidental trauma
was a synonym for child abuse, battered child syndrome, and shaken baby
syndrome. The same type of injury would not be unusual as a result of a motor
vehicle accident. However, the pattern of acute and older hemorrhage and the
interhemispheric hemorrhage in this case were highly specific and highly
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suggestive indicators for non-accidental head injury, particularly when there
was no evidence of external trauma. He agreed that “suggestive” did not mean
“conclusive.” He acknowledged that cerebral hemorrhage could occur as a
result of birth and that a child’s minor cerebral hemorrhage at birth could be
exacerbated by a later trauma such as being dropped. However, placing a child
in a “bouncy” seat or swing would be extraordinarily unlikely to create the
acceleration and deceleration necessary to cause the type of injuries in this
case. He said a fall would be very unlikely to create the pattern of injuries
similar to the victim’s.
Michelle Trehern testified that she had married the Defendant when she
lived in Alabama and that they had two children. She was awarded full
custody of the children upon the couple’s divorce in November 2006. She
moved back to Tennessee in October 2006, and the Defendant came to live
with her on March 5, 2007. At first, her mother and her mother’s neighbor
babysat the victim while she worked. After the Defendant moved to
Tennessee, he and some neighbors babysat the victim, although she could not
remember the neighbors’ names.
Ms. Trehern testified that the victim regressed in development. The
victim had problems holding up her head, when she had been able to before,
and the victim also stopped rolling over. It was difficult to keep the victim
awake. She denied seeing the Defendant shake the victim, but when asked if
the victim had been crying before she caught the Defendant shaking the victim,
she responded that the victim had been crying for a few minutes. She said the
Defendant had a bad temper and had to attend anger management classes for
about a month. The Defendant called the victim a “b----” once or twice when
he was very frustrated. She said the Defendant did not understand why the
victim kept crying.
Ms. Trehern testified that she made a statement to Investigator Teddy
Collingsworth and signed it. However, she denied making any corrections to
the statement. She said that she initialed the corrections that Collingsworth
made. She did not agree that she told Collingsworth that the Defendant was
the only person who cared for the victim while she worked. She said she told
Collingsworth and the Department of Children’s Services (DCS) that
neighbors also babysat the victim. She claimed that Collingsworth would not
let her read the statement after he wrote it but that he read it aloud to her. She
said that Collingsworth never read anything to her about the Defendant
shaking the victim. She agreed that she told Collingsworth that she might
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know what caused the injuries, but she denied that she meant that the cause
was the Defendant’s shaking the victim. She was unaware of any injury to the
victim, and she never saw the child dropped. The Defendant later told her he
had sneezed, blacked out, and dropped the victim. She agreed that she left
with the Defendant after she gave her statement to Collingsworth, but she said
she had nowhere else to go until DCS found her an opening in a shelter. She
said her mother and father had custody of the victim.
On cross-examination, Ms. Trehern testified that no one had asked
whether someone other than the Defendant had tended the victim until DCS
questioned her at the Johnson City Medical Center. She said that after her
meeting with Collingsworth, she asked the Defendant to tell her if he had done
anything. She had testified during a May 17, 2008 hearing in juvenile court
that the Defendant had never shaken the victim. She had not had any contact
with the Defendant since he had been charged with the offenses in this case.
She acknowledged that she suffered from bipolar disorder, and she said that
her moods fluctuated “really quickly.” She said she was treated with Zoloft
and had been hospitalized three times for the illness.
Teddy Collingsworth, a criminal investigator with the district attorney
general’s office, testified that he specialized in child abuse investigations. He
was contacted by Donna Spencer with DCS on April 25, 2007. He attended
an interview with the Defendant and Ms. Trehern the next day. He
interviewed Trehern first, reduced her statement to writing, and gave her an
opportunity to review it. He made some corrections, read the statement to her,
and allowed her to read it. He had her initial the mistakes. Ms. Trehern’s
statement specified:
Investigator Teddy Collingsworth with the . . . District
Attorney’s office . . . told me that I wasn’t under arrest and that
I could get up and leave at any time. I give this statement freely
and voluntarily.
I have known [the Defendant] for approximately three
years. We have two children together, [T.T.] 22 months and
[the victim] four months. [The Defendant] and I were married
12-18-2004 and divorced 11-18-2006. We lived in Brewton,
Alabama. [T.T.] was three years old and he had three broken
ribs. [The Defendant] admitted that he hugged him and broke
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the ribs after [T.T.] was crying and he picked him up to comfort
him.
After moving to Rogersville, Tennessee, I let [the
Defendant] come back to live with us, trying to work things out.
I was working in Greeneville and [the Defendant] was baby-
sitting. Then I got a job at Save-A-Lot in Rogersville [.] [The
Defendant] was still watching the kids while I worked. On
April the 9th, 2007, we took [the victim] to Dr. Giles office in
Greeneville because she . . . wasn’t eating well. Then during
that week [the victim] was crying and [the Defendant] got upset
and picked her up and shook her hard and I got her from him.
[The Defendant] really loses his temper a lot when the children
cr [y]. He calls [the victim] a b[----] when she cries a lot. Then
on April 16, 2007 I had [the Defendant] to take the [the victim]
back to Dr. Giles because all [the victim] was doing was
sleeping and not eating. Dr. Giles did some tests and they came
back normal. Then on Wednesday April 18, [the victim] had a
seizure and I took her to W[el]lmont ER in Rogersville and she
got out of the hospital on Thursday evening. Then on Saturday
morning [the Defendant] came to work and got me, that [the
victim] had another seizure and we took her back to the ER.
And they transferred [the victim] to JCMC in Johnson City.
When I caught [the Defendant] shaking [the victim] that day I
had walked into the bedroom and it was when I came out that
was when I saw him shaking her I don’t know how long he had
been shaking her. [The victim] had been crying a while before
I come [sic] out of the bedroom. After the Doctor told me about
the serious injuries that [the victim] had I knew in the back of
my mind what caused the injuries. But, I was afraid to tell
because I personally know what [the Defendant] can do when he
gets mad. Sometimes [the victim] will be crying and when [the
Defendant] goes to check on her she will cry a lot louder and I
will ask [the Defendant] what did you do to her. He will say
nothing.
Investigator Collingsworth testified that he and the DCS agent
witnessed Ms. Trehern sign the statement. He next talked to the Defendant.
The Defendant said he did not shake the victim but admitted that he got upset
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when the victim cried. Collingsworth reduced the victim’s statement to
writing and the Defendant signed it. In it, the Defendant said:
I moved back to my ex-wife, Michelle Trehern, the first
of March 2007. I don’t know the exact day. Michelle was
working in Greeneville at T.I. Automotives; then Michelle got
a job at Save-A-Lot in Rogersville. I was watching [T.T.], date
of birth 6-6-05, and [the victim], date of birth 12-20-06, while
Michelle was working.
I took [the victim] to Dr. Giles in Greeneville about two weeks
ago because Michelle was working. [The victim] was sleeping
all of the time and not eating. Dr. Giles did some tests, but they
came back normal. Then Michelle took [the victim] to the E.R.
because [the victim] was having seizures last Wednesday. [The
victim] was released the next day that evening. Then this past
Saturday [the victim] had another seizure, and I went to
Michelle’s work and we took her to the E.R. in Rogersville and
she was transferred to Johnson City Medical Center.
When [the victim] cries it upsets me sometimes, but I
have never shook [sic] her. I call [the victim] a bitch sometimes
when she cries because I don’t think nothing [sic] is wrong with
her. Her mother calls her a bitch, too. I never get too upset that
I don’t remember what I do. When [T.T.] was four months old
he would cry and I would get upset and it would upset me, and
one time I picked him up and hugged him and broke five ribs.
This was in Alabama. I do better since I went to anger
management classes. I would never hurt [the victim]. I have
never shook [the victim]. [T.T.] shakes [the victim] when she
is in the bouncer seat and car seat. If I had done something to
[the victim], I would admit it. If I did, I would tell her I’m
sorry.
Investigator Collingsworth was contacted at 6:30 that evening. The
Defendant had returned to the office and had asked to see him. The Defendant
said he had not been truthful in his first statement. The Defendant gave a
second statement to Collingsworth in which he stated:
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I came to the Hawkins County Sheriff’s Department and
talked with Deputy Daniel Byington and told him I had talked
to Investigator Teddy Collingsworth with the District Attorney’s
Office earlier today and hadn’t told him everything, that I
wanted to talk to [him]. At 7:15 Investigator Collingsworth told
me that I wasn’t under arrest and that I could get up and leave at
any time. I give this statement freely and voluntarily.
Today when I talked with you I didn’t tell you the truth.
I caused the injuries to [the victim]. The week of April the 9th
through the 16th I had [the victim] up over my head, playing
with her and she was laughing. I got dizzy and lost sight and
dropped [the victim], and before she hit the floor I got my sight
back and she hit the floor on her back. I don’t know if her butt
or head hit the floor first. I didn’t tell anybody or Michelle that
I had dropped her. The doctors didn’t ask me at the Johnson
City Medical Center what happened to [the victim] to cause the
injuries because I wasn’t there much. This is the whole truth.
I hugged my son, [T.T.], too tight, not knowing my strength, to
cause the broken ribs. I lose vision when I sneeze and I sneezed
the day I dropped [the victim].
On cross-examination, Investigator Collingsworth testified that he did
not record the statements. At the time he interviewed Ms. Trehern, he had
been told that the victim had a skull fracture and a rib fracture in addition to
the subdural hematomas. He said that authorities in Alabama had conducted
a nine-month investigation of the Defendant and the incident involving [T.T.]
but that no charges were ever filed. He said that the Defendant was about six
feet and two inches tall and that the ceilings of the trailer in which the
Defendant lived were not high enough to allow the Defendant to stand and
hold the victim overhead.
On redirect examination, Investigator Collingsworth demonstrated how
Ms. Trehern described the Defendant’s shaking the baby. He held his hands
approximately eight or ten inches apart and moved them back and forth in
front of his face.
Dr. Mary Ann Neal, a pediatric radiologist, testified that she reviewed
multiple x-rays and scans of the victim. The victim had a left parietal skull
fracture and subdural hematomas of different ages on each side of the brain.
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On an initial skeletal survey, there was a question about a possible rib fracture,
but subsequent x-rays were negative. Using the April 21, 2007 CT scan and
an April 25, 2007 MRI, Dr. Neal described an acute area of bleeding on the
left side of the brain and an older area of bleeding on the right side. The
victim’s brain had been pushed inward from the mass effect of the bleeding.
She estimated the age of the left parietal hemorrhage as between one and ten
days old as of April 21. She estimated the right parietal hemorrhage as older
than ten days. She said the skull fracture occurred between ten days and three
months before the CT scan. Dr. Neal said that based upon a reasonable degree
of medical certainty, the subdural hematomas and skull fracture were
consistent with neurological dysfunction. She said that absent a severe motor
vehicle collision, the victim’s injuries were consistent with non-accidental
trauma.
On cross-examination, Dr. Neal testified that there might be other
causes for a child to experience neurological problems. A fall from a
significant height of six feet would cause cerebral hemorrhaging. Bruising
was not always present in shaken baby syndrome. Lethargy, retinal
hemorrhaging, and non-reactive pupils could also be symptoms of shaken baby
syndrome. She said that bulging fontanels were not something that could be
detected on the scans but that someone examining the victim would be able to
feel them. The skull fracture could have occurred as a result of a fall from a
height of six feet. She also said that the skull fracture occurred at the time of
one of the hemorrhages. She did not agree that the injury to the right side of
the skull dated to the time of the victim’s birth, but she said that the injury
could have occurred in January or February.
Dr. Jeff Carlsen testified that he was a pediatric ophthalmologist who
examined the victim. He said he detected hemorrhages in three quadrants in
the victim’s left eye. Based upon a reasonable degree of medical certainty, his
opinion was that the retinal hemorrhages were consistent with non-accidental
trauma. He said the trauma in this case was [an] acceleration-deceleration
injury, or shaken baby syndrome.
On cross-examination. Dr. Carlsen testified that bruising was not
necessarily found in shaken baby syndrome. He said a major percentage of
children who suffered shaken baby syndrome had major central nervous
system injury. He said that the victim’s eye injury was mild to moderate. He
would not presume that hemorrhaging would occur in both of the victim’s eyes
because hemorrhaging in both eyes did not occur in twenty-five to thirty
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percent of shaken baby cases. He also said that non-reactive pupils were not
necessarily common in a shaken baby case and that in all the cases in which
he had been involved, only one child had non-reactive pupils.
Dr. Ricky Mohon testified that he was the Director of the Pediatric
Critical Care Unit at Johnson City Medical Center and an Associate Professor
in the Department of Pediatrics at Quillen College of Medicine at East
Tennessee State University. He first saw the victim on April 22, 2007, when
she was transferred from another hospital. The victim’s history was that she
had been a normal three-month old baby until two weeks before he saw her.
Nothing suggested the family was aware of anything that had caused the
victim’s injuries. The victim was hospitalized for about seventeen days. The
victim had an EEG to detect seizures and was started on seizure medications.
He said his diagnosis was a history of seizures and bilateral subdural effusions
with the possibility of non-accidental trauma. He said he ruled out other causes
of the bleeding. In his opinion, the bleeding injuries were caused by shaken
baby syndrome and the skull fracture was caused by blunt force trauma, such
as striking a wall or a floor. He said that the victim suffered serious bodily
injury and that the subdural effusions could cause permanent brain damage and
seizures. The victim had to have procedures to drain the blood from her head.
On cross-examination, Dr. Mohon testified that, ultimately, the victim
had no rib fractures. He said that hairline fractures, chip fractures, and some
of the findings in shaken baby syndrome are subtle changes that a radiologist
might not have much experience in detecting. It would be unusual to have rib
fractures in an infant because infants’ chests are very flexible. Bruising did
not necessarily indicate abuse or the severity of abuse, nor did the lack of
bruising indicate no abuse. He did not notice any bruising on the victim. A
retinal hemorrhage could cause permanent damage and blindness, and retinal
hemorrhaging could occur during birth, during an automobile accident, or as
the result of a fall. However, retinal hemorrhages caused by birth would
resolve quickly and would not be present in a three-month-old baby. He had
never seen a retinal hemorrhage in a child as the result of a fall from a parent’s
arms, but a fall from six to eight feet could cause cerebral hemorrhage. He
said that non-reactive pupils resulted from significant injury but that reactive
pupils did not negate a diagnosis of severe abuse. Lethargy was not
necessarily a typical finding in shaken baby syndrome because a child’s
symptoms depended upon the severity of the injury and on the particular
patient. It was possible for a shaken baby to be active and alert if the injury
was not severe enough to affect mental status. He said that the victim probably
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had a seizure disorder and that the subdural effusions and retinal hemorrhages
were significant injuries. He was unable to say whether that trauma would
cause permanent, irreparable brain damage. During the victim’s
hospitalization, she experienced vomiting, feeding problems, and aspiration
problems, and Dr. Mohon attributed these complications to brain damage. He
said the skull fracture indicated with a medical certainty that the victim had
suffered a traumatic event. He said that without any history of trauma, the
only diagnosis was non-accidental trauma. He said that after learning the
extent of injuries, some parents would fabricate an event to explain how the
injuries occurred but that the scenarios they fabricated would not be severe
enough to explain the injuries. He agreed that dropping a baby from six feet
onto a concrete slab could cause a skull fracture and retinal hemorrhaging.
The patient history compiled by the resident physician, Dr. Stansberry,
reflected that the victim had been watched by neighbors.
Donna Spencer testified for the defense that she was a child protective
services investigator with DCS. She spoke with Michelle Trehern on April 25,
2007. Ms. Trehern asked whether DCS would give custody of the victim to
the Defendant if she admitted that she committed the abuse. Ms. Spencer
reported Trehern’s statement to the district attorney general.
On cross-examination, Ms. Spencer testified that she was present when
Ms. Trehern gave her statement to Investigator Collingsworth. She heard
Trehern say every word that was contained in the statement. She saw Trehern
sign the statement, and she signed it also. Her impression was that Trehern
was trying to take the blame for the Defendant.
Investigator Collingsworth was recalled by the defense and testified that
Ms. Trehern did not report that neighbors sometimes babysat the victim. He
had reviewed the testimony from a juvenile court hearing in which she had
testified that her neighbors watched her children. He said he did not see the
doctor’s report that reflected that neighbors had babysat the children until
months after he interviewed Trehern. He agreed that he had not attempted to
determine the names of the neighbors and what contact they might have had
with the children. He said Trehern did not inform him that she suffered from
bipolar disorder, that she was taking medication, or that she had been
hospitalized three times for the disorder.
Betty Gorman, the victim’s maternal grandmother, testified that she had
physical and legal custody of the victim and the victim’s older brother. The
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victim had been “back and forth” to doctors for follow-up care and had begun
experiencing seizure activity in July 2008. The victim’s eyesight appeared to
be fine, and the victim was developing normally for her age, except for a slight
laxity in her speech.
State v. Richard Trehern, No.E2009-00066-CCA-R3-CD, 2010 WL 2695635, at *1-2 (Tenn.
Crim. App. Nov. 12, 2010).
Post-Conviction Hearing
Petitioner testified that trial counsel did not hire an expert witness to contradict that
the victim’s injuries were caused by shaken baby syndrome. He said that trial counsel did
not investigate his case or talk to any witnesses. He felt that trial counsel should have talked
with his family members, including his mother and father, and individuals who babysat the
victim. Petitioner could not recall the babysitters’ names. He said that he gave trial counsel
directions to their houses.
Petitioner testified that he was “locked up” for fourteen months, and trial counsel
came to see him “maybe once or twice.” He said that Lawrence Smith, the investigator for
the public defender’s office came to see him four or five times. Petitioner testified that trial
counsel did not call him as a witness at trial. Petitioner further testified, “He told me - - he
told me that during the trial it looked pretty good, you don’t have to get up and testify, and
about half way through he said everything looks good.” Petitioner said that he wanted to
testify at trial, and he would have told the jury the same thing that was in his statement.
On cross-examination, Petitioner acknowledged that his statement was admitted at
trial. He further acknowledged that the trial court conducted a Momon hearing to determine
whether he wanted to testify. Both trial counsel and the trial court questioned Petitioner
during the Momon hearing, and Petitioner indicated that he understood his right to testify if
he so desired. Petitioner further acknowledged during the hearing that he had decided that
he was “comfortable with not testifying.”
Concerning an expert witness, Petitioner admitted that several doctors testified at trial
for the State, and they testified that “it was shaken baby.” However, Petitioner felt that trial
counsel should have sought a “shaken baby doctor. The only doctors that testified were not
no [sic] expert on shaken baby syndrome.” Petitioner acknowledged that the victim’s
medical records were admitted at trial, and the doctors testified from those records, which
were records that they had made.
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Petitioner testified that Mr. Smith introduced himself as an investigator for the public
defender’s office. He was not aware that Mr. Smith was previously a child abuse investigator
with the district attorney general’s office and had testified as an expert witness on child abuse
numerous times in the past. Petitioner testified that Mr. Smith never reviewed any of the
evidence with him. He said that Mr. Smith “just wanted me to tell him some of the things
that I knew; you know what I’m saying.”
Petitioner testified that trial counsel and Mr. Smith discussed a few defenses with him,
one of which was that someone else committed the crime. They also suggested attacking the
credibility of Petitioner’s wife. Petitioner testified that he did not know that his sentence
would have to be served at one-hundred percent rather than thirty percent. He acknowledged
that trial counsel discussed a plea offer with him of fifteen years at one-hundred percent.
However, Petitioner testified that at that time, trial counsel did not explain to him that the law
required one-hundred percent service of his sentence. Petitioner admitted that trial counsel
later discussed a second plea offer of twelve years at thirty-percent with him that he rejected.
Petitioner did not know if trial counsel was working on an investigation to impeach his
wife’s credibility.
Lawrence Smith testified that he previously worked as an investigator with the public
defender’s office for eighteen years and retired in 2010. He also worked for the Hawkins
County Sheriff’s Department and the district attorney general’s office. Mr. Smith testified
that he met with Petitioner many times, and they discussed Petitioner’s case. He also asked
Petitioner to provide him with witnesses. Mr. Smith testified:
We [were] not able to find a person that had been a neighbor that he had - -
didn’t know the name. The neighbor had relocated and was unable to contact
that neighbor. Most of the people that [Petitioner] and I talked about were
involved in the case, his ex-wife, Michelle, various social workers,
psychologists, and things of that nature.
Mr. Smith testified that he did his best to find the unknown babysitter that Petitioner wanted
him to interview; however, he did not have a name for the person.
Mr. Smith testified that during the course of his investigation, he obtained some
records from Alabama with respect to Petitioner and his wife. There was a previous
investigation in Alabama when Petitioner was investigated for child abuse. The charges were
later dismissed. Concerning Petitioner’s wife, Mr. Smith testified:
In this case in Tennessee and a previous case in Alabama, Michelle had put the
finger on [Petitioner], had told various different stories which I have
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documentation from their case file, that [Petitioner] did things, and that they
decided was not true, and Michelle has a long history of being untruthful,
having mental problems, going and having outbursts, causing disturbances
with police, have come - - She’s filed false reports on [Petitioner], and I had
discussed those situations with the Alabama case workers and also with the
District Attorney, I believe his name, last [sic] name was Billy during that
time.
Mr. Smith testified that it was his and trial counsel’s plan to attack Ms. Trehern’s
credibility at trial. They were able to locate her a few days before trial and interview her.
The interview was recorded. Mr. Smith testified that Ms. Trehern lied about Petitioner
during the interview and changed her statement. He immediately notified trial counsel, and
he and trial counsel then met with the District Attorney General. After the meeting,
Petitioner received a more favorable plea offer. Trial counsel and Mr. Smith reviewed the
offer with Petitioner, but he did not want to attack his wife’s credibility and rejected the
offer.
Mr. Smith testified that the State had numerous doctors listed as expert witnesses in
the case. He recalled talking to some of the doctors, and he read every deposition from the
doctors. Mr. Smith testified that there were numerous hearings and depositions in juvenile
court involving Petitioner and his wife, and Mr. Smith “also interviewed all the attorneys, the
guardian ad litems, and went over all of the medical evidence that the doctors had compiled
and I’d have turned - - and I agreed that this child was a victim of shaken baby but they [sic]
was no evidence in there saying who shook the baby.”
Mr. Smith testified that he was familiar with some of the doctors who were going to
testify in the case, and he was familiar with medical records of that type. He agreed with the
doctors’ findings. Concerning the records, Mr. Smith testified:
We had also the x-rays, we had M.R.I.s, hospital lab reports, we had nurses’
notes, we had a box of medical records and went through that, Mr. Mattocks
and I did. Considered trying to attack the shaken baby syndrome, which had
not been successful in the United States, but everything in the reports was
clear; the evidence pointed that the injuries received by the child was from
shaking.
Mr. Smith testified that he felt it would have been embarrassing and irritating to the
jury for trial counsel to “drill” the doctors about whether the victim suffered from shaken
baby syndrome. For that reason, he and trial counsel did not spend a lot of time “trying to
sit down with each individual doctor.”
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Mr. Smith testified that the plan of defense was that Petitioner did not commit the
crime. He said that he met with Petitioner at least ten times, and they received discovery.
He noted that Petitioner had a mental evaluation and that he had a learning disability. Mr.
Smith testified that Petitioner did not understand “when we would be talking about the
medical issues about hematomas and about retinas bleeding and things.”
On cross-examination, Mr. Lawrence testified that no expert was hired for Petitioner’s
case. He said:
Dr. Cleveland Blake and Dr. Will McCormick and other doctors that I’m
acquainted with, I often took the discovery medical reports, met with them,
and did not hire them, but out of my experience becoming friends and
acquainted with them would review records, give me opinions and things of
that nature. The public defender’s office was very limited on funds and so we
[were] able to get ex - - advice from various people.
Mr. Smith said that the “primary” theory of defense was to impeach Ms. Trehern’s
credibility, but Petitioner did not agree to it.
Trial counsel testified that he had been an assistant public defender since 1992 and
had worked on numerous cases, including child abuse cases. He was assigned to Petitioner’s
case and was assisted by Mr. Smith. Trial counsel testified that he asked Mr. Smith to try and
locate a number of witnesses, which included a neighbor babysitter. However, they were
never able to identify the babysitter. He also asked Mr. Smith to look into an Alabama
investigation involving Petitioner.
Trial counsel testified that there seemed to be no effective method of challenging the
doctors on whether the victim suffered from shaken baby syndrome. He said, “our theory of
the case was that [Petitioner] had not done this, that it was Michelle Trehern who had caused
these injuries.” They also thought that it could have been the unnamed babysitter. However,
with the minimal information about the babysitter, the defense was “going to target Michelle
Trehern as the perpetrator.”
Concerning attacking the credibility of Petitioner’s wife, trial counsel testified:
And [Petitioner] was against us going after Michelle Trehern because I think
he still harbored hopes that he was going to get out of jail and they were going
to be back together again, one nice happy family, you know. And in that
regard we were prepared to go ahead and attack her whether he wanted us to
or not up to the point where we found out that she was changing her statement
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and - - and I don’t think what she changed it to was that she lied to police
about that; I think she was saying the police made this stuff up that was in her
statement and then made her sign it, threatened and coerced her into signing
it. I think that’s what she ended up testifying at trial by that point, you know,
we were sort of in a dilemma, do we go ahead as we planned and go after her,
you know, she’s coming in and testifying and saying that none of this stuff in
her statement ever happened, I want you to believe me, this is why the
statement I signed is a lie. And if we had gone after calling her a liar at that
point then it looked like what we were doing was throwing the jury back to her
original statement and leaving them in a position where if she’s lying now,
then she must have been telling the truth then, and we did not want that.
Trial counsel testified that he knew of at least two occasions where he stopped and
talked to Petitioner, prior to the indictment, while Petitioner was at the Hawkins County Jail,
and prior to getting any information from the State. Trial counsel estimated that he and Mr.
Smith met with Petitioner at least ten times, and they reviewed discovery with him. He also
had individual meetings with Petitioner. Trial counsel testified that he had spent time with
Petitioner “explaining and going over the statute itself, what he was charged with, and that
it was going to be a hundred percent, that any sentence he was going to get was going to be
served.”
Trial counsel testified that Michelle Trehern was located the week before trial and was
“reneging” on her story. He spoke with the District Attorney General who agreed to a plea
offer of a reduced charge and twelve years at thirty percent. The offer was reviewed with
Petitioner in the kitchen area of the jail, and Petitioner rejected it.
Trial counsel testified that he did not attack Ms. Trehern’s credibility at trial because
she testified that she never told Investigator Collingsworth that she saw Petitioner shaking
the victim. Therefore, it was a “trial strategy.” He had discussed the decision with the Public
Defender and another defense attorney.
On cross-examination, trial counsel testified that he spoke with Dr. Maurice Robinson
about the case. He did not attempt to retain him or Dr. Blake or Dr. McCormick because
“[t]hey didn’t have anything to say that was going to be beneficial to the defense.”
II. Standard of Review
On appeal, Petitioner asserts that he received ineffective assistance of trial counsel
because trial counsel (1) failed to adequately communicate and meet with him to prepare for
the case; (2) failed to attack the credibility of Petitioner’s wife on cross-examination; (3)
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failed to advise him that the crime for which he was charged had no release eligibility date;
(4) failed to adequately advise him of the consequences of Momon; and (5) failed to obtain
an expert witness to rebut the State’s theory of shaken baby syndrome. We disagree.
In a claim for post-conviction relief, the petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
Tenn. Code Ann. § 40-30-103. Petitioner bears the burden of proving factual allegations by
clear and convincing evidence. Tenn.Code Ann. § 40-30-110(f); Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009). The post-conviction court’s factual findings “are conclusive
on appeal unless the evidence preponderates against those findings.” Jaco v. State, 120
S.W.3d 828, 830 (Tenn. 2003). Upon review, this court will not reweigh or reevaluate the
evidence below, and all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial court, not this court. Momon v. State, 18 S.W.3d 152,156 (Tenn. 1999).
On appeal, the post-conviction court’s findings of fact are entitled to substantial
deference and are given the weight of a jury verdict. They are conclusive unless the evidence
preponderates against them. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley
v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). A post-conviction court’s
conclusions of law are subject to a de novo review with no presumption of correctness.
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001). Our supreme court has “determined that
the issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact, . . . thus, [appellate] review of [these issues] is de novo”
with no presumption of correctness. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
When a petitioner seeks post-conviction relief based on the alleged ineffective
assistance of counsel, the petitioner bears the burden of showing that (a) the services
rendered by trial counsel were deficient, and (b) that the deficient performance was
prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order
to demonstrate deficient performance, the petitioner must show that the services rendered or
the advice given was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate
prejudice, the petitioner must show that there is a reasonable probability that, but for
counsel’s deficient performance, the result would have been different. See Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Because a
petitioner must establish both prongs of the test to prevail on a claim of ineffective assistance
of counsel, failure to prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997).
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On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court
may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See
id. However, such deference to the tactical decisions of counsel applies only if counsel
makes those decisions after adequate preparation for the case. See Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Concerning Petitioner’s post-conviction petition, the trial court made the following
findings:
The Court finds that Petitioner is not credible concerning his allegations that
his attorney, [ ], did not investigate the case, only visited him one or two times
and would not let him testify at trial. The proof in this matter shows that [trial
counsel] is an experienced public defender who investigated the case with the
help of a very experienced investigator, Lawrence Smith. Mr. Smith attempted
to locate witnesses including the babysitter that Petitioner could not name. Mr.
Smith and [trial counsel] both agreed that the child’s injuries were consistent
with shaken baby syndrome and that there was no need to try to locate an
expert to attack the child’s injuries. [Trial counsel] and Mr. Smith agreed that
the real issue in the case was: who caused the injuries? They wanted to attack
the credibility of Petitioner’s ex-wife, Michelle Trehern but Petitioner would
not let them. [Trial counsel] and Mr. Smith visited Petitioner on many
occasions and [trial counsel] testified he went over discovery with Petitioner.
[Trial counsel] had a very difficult case because Petitioner said that he lied in
the first statement to law enforcement and that he dropped the baby when he
sneezed and blacked out. Petitioner’s second statement was less credible when
doctors testified the child had different ages of injuries and the injuries could
not be caused by dropping the baby.
Failure to Sufficiently Meet with Petitioner
Petitioner contends that trial counsel failed to adequately meet with him before trial
to prepare for the case and work toward an effective defense. Petitioner asserts that he was
incarcerated for fourteen months prior to trial and that trial counsel only met with him once
or twice during that time, and he met with the investigator four or five times. However, the
trial court credited the testimony of trial counsel and Lawrence Smith. Mr. Smith testified
that he met with Petitioner more than ten times, and they discussed Petitioner’s case and
reviewed discovery. They also discussed witnesses, including a babysitter whose name
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Petitioner could not provide. The plan of defense was that Petitioner did not commit the
crime and that it was committed by Petitioner’s ex-wife, Michelle Trehern.
Trial counsel testified that he knew of at least two occasions that he visited Petitioner
in jail prior to the indictment. Trial counsel further estimated that he and Mr. Smith met with
Petitioner at least ten times, and they reviewed discovery with him. He also had individual
meetings with Petitioner.
Petitioner has not demonstrated that trial counsel’s performance in this area was
deficient or how further meetings or communication with trial counsel would have helped
his case. Petitioner is not entitled to relief on this issue.
Failure to Attack the Credibility of Petitioner’s Ex-wife
Next, Petitioner argues that trial counsel rendered deficient performance by not
attacking the credibility of his ex-wife, Michelle Trehern, at trial. Ms. Trehern gave a
statement to police implicating Petitioner as the perpetrator of the crimes. However,
immediately before trial, when interviewed by trial counsel and Mr. Smith, Ms. Trehern
informed them that her story had changed. At trial, she testified that the police made up the
contents of her statement and then threatened and coerced her into signing it. Her testimony
at trial was then more favorable to Petitioner. Trial counsel testified:
And if we had gone after calling her a liar at that point then it looked like what
we were doing was throwing the jury back to her original statement and
leaving them in a position where if she’s lying now, then she must have been
telling the truth then, and we did not want that.
Trial counsel further testified that he made a tactical decision not to attack Ms. Trehern’s
credibility. We further note that both trial counsel and Mr. Smith testified that in any event,
Petitioner did not want his ex-wife’s credibility attacked at trial.
We conclude that trial counsel made a sound, strategic decision not to attack Ms.
Trehern’s credibility. As noted above, this Court may not second-guess a reasonably-based
trial strategy, and we cannot grant relief based on a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
1994). Moreover, Petitioner has not demonstrated or even argued how his case was
prejudiced by trial counsel’s performance in this area.
Failure to Advise Petitioner of Release Eligibility
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Third, without any further argument, Petitioner contends that trial counsel was
ineffective for failing to advise him that the charge of aggravated child abuse “had no release
eligibility date and also stated that his counsel did not go over that fact with him.” However,
trial counsel testified that he had spent time with Petitioner “explaining and going over the
statute itself, what he was charged with, and that it was going to be a hundred percent, that
any sentence he was going to get was going to be served.” Petitioner has failed to prove his
claim by clear and convincing evidence, and he is not entitled to relief on this issue.
Failure to Adequately Explain the Consequences of Momon
Fourth, Petitioner argues that he did not understand the consequences of the Momon
hearing and “misconstrued his counsel’s advice.” He further contends that “counsel had a
duty to make him affirmatively understand the consequences of his Momon examination,
particularly since his own counsel testified that he ‘needed a lot of help’ as far as going over
the more technical aspects of his case.” The record shows that the trial court conducted a
Momon hearing to determine whether Petitioner wanted to testify. See Momon v. State, 18
S.W.3d 152, 161-62 (Tenn. 1999). Both trial counsel and the trial court questioned Petitioner
during that hearing, and Petitioner indicated that he understood his right to testify if so
desired. Petitioner acknowledged at the Momon hearing that he was “comfortable with not
testifying.” Petitioner has not demonstrated that trial counsel’s performance was deficient
in this area.
Furthermore, Petitioner cannot demonstrate prejudice. He testified that the post-
conviction hearing that if he had testified at trial, he would have told the jury the same thing
that was in his statement to police which was admitted at trial. Petitioner is not entitled to
relief on this issue.
Failure to Hire an Expert Witness
Finally, Petitioner contends that trial counsel was ineffective for failing to hire an
expert witness to rebut the State’s theory that the victim suffered from shaken baby
syndrome. We disagree.
Lawrence Smith recalled talking to some of the doctors who were listed as witnesses
for the State, and he read every deposition from the doctors. He reviewed all of the medical
evidence that the doctors had compiled, and he agreed that the victim suffered from shaken
baby syndrome. The only issue was a question of who actually shook the victim.
Concerning the victim’s medical records, Mr. Smith testified:
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We had also the x-rays, we had M.R.I.s, hospital lab reports, we had nurses’
notes, we had a box of medical records and went through that, [trial counsel]
and I did. Considered trying to attack the shaken baby syndrome, which had
not been successful in the United States, but everything in the reports was
clear; the evidence pointed that the injuries received by the child was from
shaking.
Mr. Smith testified that he felt it would have been embarrassing and irritating to the
jury for trial counsel to “drill” the doctors about whether the victim suffered from shaken
baby syndrome. For that reason, he and trial counsel did not spend a lot of time “trying to
sit down with each individual doctor.” Mr. Smith testified he often took “the discovery
medical reports” to Dr. Cleveland Blake and Dr. Will McCormick and other doctors that he
was acquainted with to review and give him opinions and “things of that nature.” He
explained that the public defender’s office was very limited on funds and was able to get
advice from various people. Trial counsel testified that he spoke with Dr. Maurice Robinson
about the case. He did not attempt to retain him or Dr. Blake or Dr. McCormick because
“[t]hey didn’t have anything to say that was going to be beneficial to the defense.” We
conclude that Petitioner has not shown that trial counsel’s performance in this area was
deficient.
We further conclude that Petitioner cannot show prejudice because he did not present
any expert proof at the post-conviction hearing. See Corwyn E. Winfield v. State, No.
W2003-00889-CCA-R3-PC, 2003 WL 22922272, at *9 (Tenn. Crim. App. Dec. 10, 2003)
(petitioner failed to prove prejudice on the claim of ineffective assistance of counsel for
failing to secure an expert because petitioner “did not present any expert proof on the issue
at the post-conviction hearing.”). Petitioner is not entitled to relief on this issue.
We conclude that Petitioner has failed to show by clear and convincing evidence that
he received ineffective assistance of counsel at trial or that he was prejudiced by any alleged
defective representation by counsel. Petitioner is not entitled to relief in this appeal.
Accordingly, the judgment of the trial court is affirmed.
___________________________________
THOMAS T. WOODALL, JUDGE
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