Angel Geovanna Hurtado v. State of Tennessee

12/06/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 21, 2018
ANGEL GEOVANNA HURTADO v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2010-B-1624 Mark J. Fishburn, Judge
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No. M2017-00908-CCA-R3-PC
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A Davidson County jury convicted Petitioner, Angel Geovanna Hurtado, of three counts
of aggravated child abuse, one count of child neglect, and one count of reckless
aggravated assault. She was sentenced to serve twenty-five years in the Tennessee
Department of Correction. The judgment was affirmed on direct appeal. State v. Angel
Geovanna Hurtado, No. M2014-00180-CCA-R3CD, 2014 WL 7417763 (Tenn. Crim.
App. Dec. 30, 2014). Petitioner filed a timely petition for post-conviction relief.
Following an evidentiary hearing, the post-conviction court dismissed the petition.
Petitioner has appealed, asserting that she is entitled to relief based upon her trial
counsel’s ineffective assistance of counsel. Following a review of the briefs of the
parties and the entire record, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
Kara L. Everett, Carthage, Tennessee, for the appellant, Angel Geovanna Hurtado.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and Tammy Meade, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Background
On direct appeal, this Court summarized the facts presented at trial as follows:
On June 15, 2010, a Davidson County grand jury charged [Petitioner]
with four counts of aggravated child abuse and one count of aggravated
child neglect, all involving her infant son, A.H., and all Class A felonies.
See Tenn. Code Ann. §§ 39-15-401, -402. [Petitioner] proceeded to trial,
where the following evidence was presented.
The victim’s date of birth was [ ], 2008. In June 2009, [Petitioner]
and her infant son moved to the Antioch residence of Vicente Jesus
Gonzalez, [Petitioner’s] boyfriend; Mr. Gonzalez was not the child’s
biological father. Prior to the move, [Petitioner] lived with her parents.
On October 27, 2009, the victim was taken to Southern Hills Hospital for
an arm injury; there it was determined that the victim suffered a fracture
in his left arm to the humerus, a bone in the upper arm. Following this
visit, the case was referred to the Department of Children’s Services
(DCS) for further investigation as to the cause of the child’s injuries. On
October 28, the following day, Tiffany Rhodes, a DCS case worker, went
to the address provided during the visit to Southern Hills, which turned
out to be [Petitioner’s] mother’s home. [Petitioner’s] family
accompanied Ms. Rhodes to the correct location, the residence where
[Petitioner] lived with Mr. Gonzalez. Mr. Gonzalez and [Petitioner] lied
to Ms. Rhodes - Mr. Gonzalez provided a false identity, identifying
himself to Ms. Rhodes as Jose Hurtado, [Petitioner’s] brother, and they
then stated that the residence belonged to Mr. Hurtado.
The following conversation transpired:
Jose Hurtado stated he was the brother of [Petitioner], he stated he
did not witness the child falling. He stated that he works late in the
evening and when he get[s] home in the morning, he goes to sleep.
He stated that he awoke around 12:30 p.m., and [Petitioner]
explained to him about [the victim’s] falling. He stated that [the
victim] looked fine and was asleep. He stated that Southern Hills
Medical explained that [the victim] had a strain in his left shoulder
and a break in his left arm and sent the family home.
According to Ms. Rhodes’s notes, she spoke with [Petitioner] in English
that day. Also, the use of an interpreter was not mentioned during the
conversation with either [Petitioner] or Mr. Gonzalez.
Following the interview with Ms. Rhodes, the child was taken to
Vanderbilt Children’s Hospital for further observation. Once there, the
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victim was initially seen by Vanderbilt Pediatric Primary Care for
assessment of the fracture to his left humerus bone. The record from
Pediatric Primary Care, entered as an exhibit, reflects that [Petitioner],
her brother, and a case worker were present with the victim when they
arrived at the hospital. The history provided in that record states: “seen
yesterday at So[uthern] Hills E[mergency] D[epartment and] diagnosed
[with left] humerus fracture (after falling on an outstretched arm per
mom). DCS involved [due to] possible spiral [fracture] of arm.
Cont[inues] to be active [and] playful.” The victim was then referred to
Dr. Neil Green, a qualified expert in the field of pediatric orthopedic
medicine and child abuse.
According to Dr. Green, a “hospital-based translator” was used to
facilitate the conversation between himself and [Petitioner]. [Petitioner]
provided the following explanation for the victim’s injury to Dr. Green:
“She told me that [the victim] was [thirteen]-months . . . and was just
beginning to learn to walk, and she was helping him walk and he fell.”
According to Dr. Green’s trial testimony, he took this statement to mean
that the victim “fell on an outstretched arm[,]” but [Petitioner] made no
mention of the victim’s falling from a step or any height. However, Dr.
Green authored the following statement after completing his evaluation
of the victim, which was admitted as an exhibit: “The injury ([left]
humerus [fracture]) is consistent with the story the mother gives as an
explanation to his injury. Mom states [the victim] fell with an
outstretched [left] arm down [one] step. This [left] humerus [fracture]
can happen with this incident.” Based upon Dr. Green’s initial
conclusion, no additional X-rays were taken of the victim that day.
At trial, Dr. Green clarified his conclusion regarding the left humerus
injury:
Fractures of the humerus, again the bone in the upper arm, do not
occur in children below the age of [twelve] months as a result of
accidental trauma. So whenever we see a young child with a
fracture of the humerus, who is a non-walking child, we
immediately feel that that is the result of non-accidental trauma
until we can prove it otherwise.
This particular child was [thirteen] months of age and was just
beginning to walk, and the mom said that the child had fallen. I
felt that was a possible explanation, but I was concerned about non-
accidental trauma. The child was beginning to walk, he had been
seen by DCS or Child Protective Services, and had also been seen
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by pediatricians at Vanderbilt and there were no red flags raised so
I didn’t investigate this further.
Dr. Green testified that he did not have the benefit of the Southern Hills
medical record or photographs of the steps outside [Petitioner’s]
residence at the time he made his initial conclusion.
Dr. Green was asked to further describe the victim’s humerus fracture,
stating that “[m]ost likely it’s the result of some rotation or twisting
injury.” He continued,
The bone itself can’t rotate. The way the fracture could occur
would be some rotation of the entire arm, probably with the elbow
somewhat bent. A child could sustain a fracture like this with a fall
on the arm, and then the body rotates around that arm that is fixed.
It is unlikely in a young child of this age because their body mass is
not quite large enough to do that, but in an older child that is how
that would occur.
Dr. Green opined that, if a person “violently” grabbed a child by
the forearm and twisted it, then an injury like this one could occur.
Stated another way, “this requires a fair amount of force in order to
cause [this] particular injury[.]” According to Dr. Green, an injury
like this one “causes a significant amount of pain[,]” and a child
would be “more than crying, [would be] screaming.” Following
this fracture, “[a]ny motion of that arm [would] cause significant
pain to [a] child until the arm [was] put at complete rest with a cast
or a splint.”
Prior to trial, Dr. Green was able to review the medical record from
Southern Hills Hospital pertaining to the victim’s visit on the preceding
day, October 27, 2009. Dr. Green recalled that facility’s notes said that
the parent was unable to provide an explanation of how the injury
occurred to the victim. The documentation from Southern Hills also
“suggested that, [p]arent states that when they woke up this morning
unable to move the left shoulder and cried when moved shoulder was
what prompted them to bring the child to the hospital[.]” Based upon
this history, Dr. Green opined that the injury would have had to occur
sometime the day before.
Dr. Green stated that delay by a parent in seeking medical treatment was
“a red flag” from the standpoint of a child abuse assessment and that a
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change in story about the cause of an injury was also “a red flag.”
According to Dr. Green, if he had known this information - that
[Petitioner] delayed in seeking treatment until the following day and that
she changed her story about the cause of the victim’s initial injury from
October 27 (when none was provided) to October 28 (when she stated
that the victim fell on outstretched arm)—he “would have investigated
this child for non-accidental trauma and would have done every
examination that [he] felt was necessary.”
Dr. Green saw the victim for a follow-up visit on November 4.
According to Dr. Green, the victim’s “arm was fine, the bone was in
good position[,]” on this occasion. He did not receive any information at
that time that caused him additional concern for the victim’s welfare.
The victim was seen again by Vanderbilt Pediatric Primary Care again
on November 11 for head swelling, but he was then referred to the
emergency department for a “full workup[.]” He was seen there by Dr.
Andrea Bracikowski, a Vanderbilt Children’s Hospital orthopedics
doctor, who employed a translator to speak with [Petitioner]. Both
[Petitioner] and the victim’s uncle were present with the child, according
to Dr. Bracikowski. Dr. Bracikowski asked [Petitioner] “if there was
any reason for why [the victim] had swelling on his head[,]” and she
stated that “he fell while walking outside, hitting the side of his head.”
A CT scan was ordered and showed “a bilateral skull fracture.”
Additionally, swelling was visible on the CT scan: “most likely where
the blunt trauma . . . occurred to his head, something hit him on the side
of his head.” According to Dr. Bracikowski, a “significant amount” of
scalp swelling would have started “immediately or nearly immediately”
after this “traumatic injury” to the victim’s head, not three or four days
later. Dr. Bracikowski described the fracture as “clearly a large skull
fracture right on the side of his head that must have caused a significant
amount of pain” and that the caregiver would have been aware of that
pain. She further explained that the fracture “went from one side of the
[victim’s] head to the other side of the . . . head,” crossing over a “suture
line[.]” She opined that “to go all the way across and cause a fracture on
the opposite parietal bone is very unusual and a nasty fracture[,]” and
continued, “A tremendous amount of force was delivered bluntly to this
child’s skull.” According to Dr. Bracikowski, it was “[h]ighly unlikely”
that running into a wall could have generated sufficient force to cause
this injury. She was asked,
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Assuming the child was in a walker, fourteen-months old, the child
in an attempt to get out of the walker, get[s] somewhat on top of it,
he obviously would have to have climbed up to a certain height,
and in that attempt to get out of the walker, that child tumbles out
and hit[s] his head on a thick glass table, on the end of a thick glass
table tumbling down and crashing on the bottom of the table’s leg,
could that height, from that type height, could an injury, a severe
[head] injury occur if that had been the case?
to which she responded in the affirmative. Dr. Bracikowski also agreed
that “some children . . . have a higher degree of tolerance for pain than
others[.]”
The MRI (Magnetic Resonance Imaging) showed that the victim further
suffered an epidural hemorrhage in his brain, which is a small area of
bleeding between the skull and the brain. Dr. Bracikowski explained,
“Epidural hematomas of the arterial type are very dangerous and life-
threatening and there are many cases of patients coming in, they seem
fine from their head and then they die.” The victim was admitted to the
hospital and placed under observation. If the parents waited three to four
days following the head injury to seek treatment, this “absolutely” could
have caused further injury to the victim, according to Dr. Bracikowski.
“[I]n almost every circumstance, the parent or caretaker” would have
taken the child immediately “somewhere to seek medical care” with this
bad of a fall.
Also, a complete skeletal survey was performed. Dr. Bracikowski stated
that it was her practice to keep the family members informed of the
results of the X-rays. In addition to the previous humerus fracture and
new skull fracture, older fractures to the victim’s right ulna and left tibia
were seen on the skeletal survey. “There were no outward signs for
those injuries[.]” According to Dr. Bracikowski, these two fractures
“were not the exact same age”; “the tibia fracture had a lot more
healing[.]” Dr. Bracikowski opined that the “fracture of just the ulna
implies . . . there was force”: “The child put up his arm to defend himself
from being hit and was struck in the ulna, that’s not a classic fracture of
a child who falls or a child who, you know, just accidentally twists their
arm, whatever, that is a defensive wound.” Dr. Bracikowski further
stated, “[I]f a child’s had enough force applied to a bone, either an arm
or leg to cause a fracture, that child had to cry, had to have swelling,
maybe bruising, not using that arm, limping, . . . if that child had a tibia
fracture, that should be limping . . . .” It was possible one of these
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additional fractures might have appeared on a skeletal survey if one had
been conducted on October 28, the child’s first visit to Vanderbilt with
Dr. Green.
Dr. Bracikowski also described the prior humerus fracture as “very
unusual” for a fall on an outstretched arm in a child this age, due to its
“twisting” nature; and she had never seen such an injury before in a child
this young. She opined that the history provided by [Petitioner] was
inconsistent with this type of injury.
In conclusion, she stated that the victim’s four fractures were “[m]ost
likely” all caused by “different mechanisms” and at “different points in
time[.]” Her “diagnosis was that this was all consistent with non-
accidental trauma.”
Sometime during the evening of November 11, Alissa Libonn, a
Vanderbilt social worker in the emergency department, spoke with
[Petitioner] and the male who accompanied her to the hospital, who was
identified to Ms. Libonn as the mother’s brother, Jose Hurtado, also the
victim’s uncle. Ms. Libonn’s notes indicated that she was being assisted
by an interpreter, a Mr. Gregory Garcia. The uncle reported to her the
following:
[T]he child and the mother lived with him, and I don’t know if it
was his wife or significant other, but they were referred to as that
child’s aunt. . . . [T]hey noticed that the child’s head was swelling
on that Sunday, and I don’t have that date. It was unclear to me at
that time, from what he was telling me, if medical attention had
been sought at that time when they noticed the swelling.
The uncle reported that they were sent by the child’s pediatrician to
the Radiology Department at Vanderbilt this afternoon for further
testing.
The mother stated to Ms. Libonn that the child did not attend daycare,
that she was the child’s primary caregiver, and that the child was
sometimes in the care of his grandmother.
Thereafter, according to Ms. Libonn’s documentation, “the medical team
from the emergency room came and explained to the mother and to the
uncle that they had found some additional injuries” and that the
Department of Children’s Services would be contacted. [Petitioner] was
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unable to provide any explanation to Ms. Libonn for any of the victim’s
various fractures.
Both Dr. Bracikowski and Ms. Libonn stated that, if a child presented to
the hospital with head swelling, it was not emergency department
protocol to refuse to treat that child. Such a practice would expose the
hospital to potential liability.
Because child abuse was suspected, a “CARE Team” assessment was
ordered. Dr. Kecia Nicole Carroll, a Vanderbilt pediatrician, spoke to
[Petitioner] on Wednesday, November 11, with the assistance of an
interpreter; no other family members were present. [Petitioner] provided
the following explanations of the victim’s injuries to Dr. Carroll:
Regarding fracture of [left] humerus:
MOC reports [the victim] was doing well until approximately [two]
weeks ago Tuesday at about 11 in the morning. MOC reports she
was outside of their home with [the victim] and he was playing.
MOC reports through interpreter “He was wanting to walk and he
went to fall, and before he fell he put his arms in front.”
When I asked where he was outside, MOC reported “outside by a
step with me. By the step of the apartment.” When I asked MOC
to tell me more about the fall, MOC reported through the
interpreter “He had toys he wanted to grab and before he did it he
fell.” When I asked what he fell on, MOC reported “He fell on the
pavement.” When I asked what he was standing on, MOC reported
“He was not standing on anything.” When I asked how he acted
after the fall, MOC reported “He did not cry or anything. I didn’t
notice until the next day that he could not move his arm.” When I
asked how he was during the rest of the day, MOC replied, “He
was fine, like always, playing.” When I asked if he was eating
okay and moving arms and legs okay, MOC replied, “Yes, he was
moving them but he could not turn his arm.”
....
Regarding cephalohematoma [scalp swelling]:
MOC reported through interpreter, “Sunday I noticed that the right
side of his head was inflamed. I called Monday and they said they
did not have appointments. Called Tuesday and they gave me an
appointment today.”
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When I asked MOC how [the victim’s] head got hurt, MOC replied
“On Sunday, he does not like to take a shower, when he was about
to take a shower he started running and he hit his head on the wall.”
“After that he was fine like always.” When I asked if he had any
crying, vomiting, or [decreased] alertness, MOC replied no except
“on Tuesday he took some milk and threw up at night.”
When I asked about what time [the victim] hit his head on the wall,
MOC reported, about 6:00 o’clock at night on Sunday.
When I asked how MOC had come to first notice his head swelling,
MOC reported “Well, my brother noticed it. He felt his head and
said it was swollen.” When asked what time it was that MOC’s
brother noted swelling, MOC replied about “11 at night. He plays
with [the victim] when he comes home from work.”
When asked if [the victim] had been alone with anyone else on
Saturday or Sunday, MO[C] reported he was always with her.
MO[C] denied that [the victim] was out of MOC’s care.
When asked, MOC reported that [the victim] did not have any
other known trauma, falls, or car accidents. MOC reported that
[the victim] did not have any other history of having broken bones
or having been in a cast.
Dr. Carroll stated that [Petitioner’s] explanation for the left humerus
fracture was inconsistent with the nature and severity of the injury. Dr.
Carroll believed that the victim would be in pain after fracturing his arm
in this way, which would have continued until the arm was immobilized,
and that the victim would have been unable to use his arm “normally
after the injury[.]” If the injury occurred the day before taking the victim
to the hospital, and the victim was not seen at Southern Hills until 2:00
p.m. the next day, Dr. Carroll opined, “Well, if a child had a fall, seeking
medical care immediately is typical after an accident. When there is a
delay in care, that is concerning that it was non-accidental injury.”
According to Dr. Carroll, in addition to the cephalohematoma, the X-
rays showed that the victim suffered an epidural hemorrhage in his brain;
however, a follow-up MRI did not reveal a brain clot. The victim was
placed under observation. Dr. Carroll did not believe that the running
into a wall was a reasonable explanation for the skull fracture due to the
severity of the injury. Also, according to Dr. Carroll, scalp swelling
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would have “start[ed] soon after[ ]” the injury, not three or four days
later. [Petitioner] never provided any explanation regarding the ulna or
tibia fractures to Dr. Carroll. Dr. Carroll opined that “it would be hard to
imagine [one incident] that would explain all of” the victim’s various
fractures.
The social history provided [ ] to [Petitioner] to Dr. Carroll was as
follows: “People living in the home: Mother; Jose Hurtado, uncle
(mother’s brother), 33 years; Janet Hurtado, Jose Hurtado’s wife, 32
years; Daphne Hurtado, Jose Hurtado’s daughter, 14 years.” [Petitioner]
did not indicate any other occupants of the home and never mentioned a
boyfriend by the name of Vicente Gonzalez.
Dr. Carroll was “very concern[ed]” that the injuries were “non-
accidental” given the number of fractures, a history that was insufficient
to explain their cause, and the different ages of the injuries. Dr. Carroll
asked [Petitioner] if the victim “had been alone with anyone on Saturday
or Sunday” when the victim sustained the head injury. [Petitioner]
reported that the victim “was always with her” and “denied that [the
victim] had been out of [her] care.” Also, the victim was “developing
normal[ly,]” had no bone disease predisposing him to fractures, and was
a happy, playful child, according to Dr. Carroll. He also did not have
any additional bruises or marks other than at the fracture areas. After
finishing her assessment, Dr. Carroll recommended that DCS continue to
investigate, and the victim was placed in DCS custody.
Around 8:30 on the evening of November 11, Detective Don Long with
the Metro Police Department Youth Services Division also spoke with
[Petitioner] and Mr. Gonzalez, who still identified himself as Jose
Hurtado, in Vanderbilt’s Emergency Department. He documented that
he was assisted by a translator, Mr. Gregory Garcia, in interviewing
[Petitioner]. [Petitioner] appeared to understand what was going on and
responded appropriately to Det. Long’s questions. He believed that “the
other gentleman [in the victim’s room] ended up speaking English.”
Det. Long asked [Petitioner] about the victim’s injuries, if there was
“anything she could think of that could have happened to this child,” and
[Petitioner] explained, “about three weeks ago that she was at her
mother’s house, [and the victim had] fallen off her mother’s bed.”
[Petitioner] stated that the victim was crying but did not mention any
other change in his mental status, as might occur with a head injury.
Det. Long later asked [Petitioner] about the prior humerus fracture, and
[Petitioner] stated that the victim “fell off outstretched arm down from
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one step.” [Petitioner] told Det. Long that she was always present with
the child. Det. Long did not observe any physical signs of abuse upon
his visual examination of the child; however, he had investigated cases
of “non-accidental trauma with fracture injures where there [were] no
outward signs of trauma[.]” Following Det. Long’s interview of
[Petitioner], he was advised by the translator that [Petitioner] had
provided conflicting accounts about the cause of the victim’s injuries.
Det. Long also interviewed Mr. Gonzalez, with Ms. Rhodes present.
Ms. Rhodes’s report indicated the following took place during the
interview:
CM accompanied Detective Long as he interviewed alleged brother
of [Petitioner], Mr. Vicente Gonzalez stated that his real name is
not Jose Hurtado, and it was Vicente Gonzalez. He stated he
wanted to apologize to CM Rhodes for not being truthful of his true
identity. He stated that he was told to lie about who he really was
because the grandmother, Maria Hurtado[ ] wanted to use him for
insurance for the children and also afraid of [the victim’s] being
taken away from the family on 10/27/09 for the first DCS
investigation where [the victim] was falling and hurting his left
arm. Mr. Gonzalez stated that he does not know how the child
obtained the injuries to his body. He stated that he leaves for work
every day around 2:00 p.m, and returns home around 12:00 a.m. in
the morning and goes to sleep. He stated that he worked for
Standard Candy, but today was his last day. He stated that
[Petitioner] has been his girlfriend for three weeks and now she is
pregnant with [their] first child. He stated both [the victim] and
[Petitioner] have been living with him. When he goes to work,
[Petitioner’s] family comes to his apartment, stays there all day,
when he comes home, they would be gone. He stated that
[Petitioner] always watches the baby and he has never seen her hurt
the child and was very caring with [the victim]. He stated that [the
victim] was like his child also and she is pregnant with his child
now. He stated that he did not want to get in trouble with the
police and that was very serious of [the victim’s] being hurt. He
stated that [Petitioner] has a real brother named Jose Hurtado.
According to Det. Long, Mr. Gonzalez expressed concern about
[Petitioner’s] telling him lies on prior occasions, and Mr. Gonzalez came
forward to tell the truth in an effort to avoid trouble with the police.
Gregory Garcia, a medical interpreter for Vanderbilt Hospital, testified
that he recalled translating on November 11, 2009, for the “team” in an
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effort to facilitate conversations with [Petitioner] while inside the
victim’s hospital room. He stated that he did not “have any difficulties
in translating or communicating” that day. He could not recall
specifically whether he was involved in a conversation with a police
officer and [Petitioner]. He did recall alerting someone to the fact that
the mother had provided different stories for the child’s injuries. He also
recalled that a “mid-20s” male was present with the mother at the
hospital, who appeared to be “a relative of the mother” at that time.
The victim again came to Dr. Green’s office on November 30, 2009, and
“the [left humerus] fracture was healed[.]” However, during this visit,
Dr. Green “realized that the child had been seen in the emergency room
on the 1[1]th of November because of a complaint of swelling in the
head - on the head. He was X-rayed and the child had a skull fracture.”
Dr. Green also reviewed the skeletal survey of the victim performed on
November 11. He observed a skull fracture “towards the back of the
head.” This fracture was “bilateral[,]” meaning it was “present on both
sides of his head.” Dr. Green opined that it would have taken a “fairly
significant blow” to have caused this injury. Dr. Green stated that the
fracture had “crossed over . . . a suture line[,]” indicating that it was
“more likely . . . a fairly significant” and “non-accidental injury.” The
emergency room note indicated that the victim was brought in that day
due to “scalp swelling” in the area of the fracture, indicating to Dr.
Green that the skull fracture was “[m]ore recent.”
Dr. Green further determined that the victim had two additional fractures
on the November 11 X-rays - one of the right ulna, a bone in the
forearm, and the other of the left tibia, the “shin bone” in the lower leg.
Dr. Green described these both as “healing fracture[s].” He further
opined,
It also appeared to me in looking at the X-rays that the ulna fracture
was older than the tibia, the leg fracture, because there was more
healing on the ulna fracture. I also looked at the skull fracture,
which was brand new and acute, but we had a child who had . . .
fractures . . . that occurred at different times.
Dr. Green elaborated, “It is exceedingly common . . . to see fractures in
children that don’t show up initially but will eventually once we start
seeing healing.” Also, the victim did not have any type of disorder or
anything else that made him prone to fracture injuries, according to Dr.
Green.
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Dr. Green stated that the tibia fracture was “less than two weeks old”
“because it takes seven days at minimum, seven to ten days, in a child of
this age for the X-ray to show the fracture, show the healing.” Dr. Green
opined that this injury to the victim’s left tibia “would have [had] to
occur by a separate mechanism from any of the other fractures that
[were] identified in the child’s body[.]” If he had performed a skeletal
survey on October 28, he likely would not have seen this injury because
“the fracture [did] not look as though it . . . had enough healing . . . to be
able to be seen” on an X-ray at that time.
Dr. Green then testified about the right ulna fracture, stating that this
fracture was “older than the healing” seen in the tibia fracture and, thus,
“occurred at an earlier time.” He opined that this fracture was “more
than two weeks old” and, again, that this injury occurred “by a separate
mechanism from the other fractures in the child’s body.” It was possible
that the fracture could have been seen on a skeletal survey, if one had
been conducted on the victim on October 28.
Dr. Green was asked about whether the victim would have suffered pain
from these three fractures to the skull, the tibia, and the ulna, to which he
replied, “Absolutely, it would have hurt.” He further stated that “a
caretaker [would] be aware that something had occurred to cause that
child to be in pain[.]” He stated, to a reasonable degree of medical
certainty, that all four of these fractures were the result of non-accidental
trauma, basing this diagnosis on the following:
The child was only [thirteen] months of age and would not have
been able to sustain these injuries on his own, and the skull fracture
was the result of significant force. Our diagnosis for non-
accidental trauma is the age of the child, and this child fits the age
group, and fractures that occurred at different times. So this child
had . . . four fractures that had occurred at different times, and that
make[s] the diagnosis of non-accidental trauma.
He acknowledged that he was revising his previous opinion of the
fracture to the left humerus made following the October 28 visit. Lastly,
he stated that explanations offered by [Petitioner] - that the child had
fallen off of a couch onto a floor, had run into a wall and struck his head,
or had fallen off of a bed onto a floor - were not sufficient to explain the
skull fracture that occurred to the victim.
On cross-examination, Dr. Green was asked about another explanation
given by [Petitioner] for the skull fracture: “that the child had fell out of
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a walker onto a glass table, striking his head, and tumbling down and
hitting the leg of that table - he fell and hit his head first, and then
tumbled down and hit his head[.]” Dr. Green responded that the fracture
was “probably not the result of a simple fall, even a fall from a small
height.”
On October 28, Dr. Green did not observe any bruises or additional
marks on the victim, other than the swelling associated with the humerus
fracture. He appeared “healthy” and “well-nourished[.]”
Members of [Petitioner’s] family and Mr. Gonzalez were also called as
part of the State’s case-in-chief. The real Jose Hurtado, the victim’s
uncle, testified that his sister never lived with him in 2009, that he was
not present at Southern Hills Hospital on October 27, 2009, that he never
went to Vanderbilt Children’s Hospital while the victim was hospitalized
in November 2009, and that he never had any conversations with
doctors, hospital personnel, social workers, or police about the victim’s
injuries. Jose was not aware of the victim’s injuries until later, and the
child always appeared “very healthy” and had “a lot of energy,”
according to Jose. Jose further testified that the victim lived with
another brother following his release from Vanderbilt in November
2009, and to Jose’s knowledge he had not suffered any additional
fractures since that time.
Jose stated that he and his family members were “very close,” interacting
with one another frequently. The victim was sometimes “taken away ...
for a couple of days” to spend time with his grandmother; Jose said the
victim was sometimes in the care of him and his wife; and the family
visited Chuck E. Cheese entertainment center on occasion, the victim
included. However, Jose could not report that the victim sustained any
serious injuries while in [the] care of anyone other than [Petitioner].
According to Jose, [Petitioner] and Mr. Gonzalez were still having a
romantic relationship, despite [Petitioner’s] incarceration. He did not
think his sister was “an abusive person to her child” and believed that his
sister was the type of person to seek immediate medical attention if the
victim suffered a serious injury.
Maria Hurtado, [Petitioner’s] mother and the victim’s grandmother,
testified that she sometimes took care of the victim for [Petitioner],
whom she described as “very active.” However, she could not recall any
injuries to the victim while in her care. Maria testified that she never
told Mr. Gonzalez or her daughter to lie about Mr. Gonzalez’s identity at
the hospital. According to Maria, [Petitioner] still received mail at her
- 14 -
residence, although she no longer lived there. Maria stated that Alexis
Vasquez, [Petitioner’s] young nephew, interpreted during the interview
with Ms. Rhodes, and that he did so at Ms. Rhodes’s request “because
nobody there spoke English.” However, according to Maria, Alexis was
not very fluent himself in English. She believed her daughter was
“innocent[,]” that any injury to the victim was an accident. Maria also
testified that the victim was in the care of other family members “from
time to time” for outings, such as to Chuck E. Cheese.
Vicente Gonzalez testified and gave a much different account than that
previously provided by the social workers, hospital staff, police, and
doctors. Regarding the victim’s arm injury, Mr. Gonzalez testified that
the victim could not “lift his arm” on the morning of October 27, 2009.
According to Mr. Gonzalez, [Petitioner] did not mention any problem
with the arm before going to bed on the prior evening, and the victim
“was perfectly fine” when he left for work early the next morning.
When Mr. Gonzalez returned home from work, [Petitioner] told him “the
baby was starting to walk and that he slipped and fell on top of his arm
outside the apartment.” They went to the hospital shortly thereafter,
taking time only to change the victim’s clothes before getting in the car.
They arrived at Southern Hills Hospital around 2:00 p.m. in the
afternoon, and this visit lasted about six hours, according to Mr.
Gonzalez. Mr. Gonzalez stated that the medical personnel at Southern
Hills gave the victim some medicine, put a sling around the victim’s
arm, and sent them home. He stated that neither he nor [Petitioner] were
told during this visit that the victim’s arm was in fact fractured.
According to Mr. Gonzalez, he did not speak English very well, and
[Petitioner] only spoke Spanish. Mr. Gonzalez was asked about a
Southern Hills Hospital record that indicated that the victim “woke up
that morning not able to use his arm” but did not mention anything about
the victim “falling with his arm out outside the house that day[.]” He
could not provide an explanation other than his inability to speak English
well.
Mr. Gonzalez confirmed that Ms. Rhodes came to his house the
following the day and interviewed them for approximately fifteen to
twenty minutes, investigating about possible child abuse. According to
Mr. Gonzalez, [Petitioner’s] young nephew translated during the
interview with Ms. Rhodes. Mr. Gonzalez said that he did not tell Ms.
Rhodes that he was [Petitioner’s] brother, Jose Hurtado, and if she said
otherwise, then she was mistaken due to the translation. Also according
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to Mr. Gonzalez, Ms. Rhodes never told them that the victim’s arm was
fractured.
Following Ms. Rhodes’s visit, the couple took the victim to Vanderbilt
Children’s Hospital for further treatment. According to Mr. Gonzalez,
the couple was “already planning on going” to Vanderbilt before Ms.
Rhodes arrived because “[i]t just didn’t seem like it was enough what
[Southern Hills] had done for him there[.]” Ms. Rhodes followed them
to Vanderbilt “to make sure everything was all right.” Mr. Gonzalez
testified that he was with [Petitioner] during the entire trip to Vanderbilt,
that he never advised anyone he was the victim’s uncle, and that other
family members were present at the hospital that day.
Mr. Gonzalez stated that they were finally informed of the arm fracture
once at Vanderbilt and that [Petitioner] explained to the doctor that the
injury occurred when the victim “had fallen while walking and put his
arms out[.]” Mr. Gonzalez was specifically asked, “Did you do anything
to cause that fracture to [the victim’s] left arm?” He replied that it was
“impossible” because he was at work and further confirmed that
[Petitioner] had always said she was present when that injury occurred.
Mr. Gonzalez was then asked about the victim’s head injury. According
to Mr. Gonzalez he first felt “a little bump on his [victim’s] head” one
day in November when he returned home from work. He said that they
took the victim to Vanderbilt Emergency Room “immediately[,]” that
they were informed of the head injury and swelling, but that Vanderbilt
refused to see the child because he “looked fine” and already had “an
appointment scheduled for a physical.” Mr. Gonzalez stated that it was
at least two more days before the victim saw a doctor.
Mr. Gonzalez described how the head injury occurred: “Well, what
happened was one time we left him on this little walking contraption that
he has, and she went to get the milk bottle and - but I didn’t know he
could get out of that thing, and he got on the sofa and then fell.”
According to Mr. Gonzalez, neither he nor [Petitioner] actually saw the
victim fall; they “just heard him crying.” Mr. Gonzalez described, “[The
victim] wasn’t a rambunctious run-around and climb all over the place
kind of kid in November of 2009[.]” Mr. Gonzalez said that it was
“three or four days” following this fall before he felt any swelling on the
victim’s head. Once admitted to the hospital, DCS came and took the
child, and they were never informed of the victim’s skull fracture. They
hired an attorney the next day, who then informed them of the fracture.
- 16 -
Mr. Gonzalez denied that he told Alissa Libonn that he was Jose
Hurtado. He did not dispute that the couple did not provide any
explanation for the victim’s injuries to Ms. Libonn.
When asked about [Petitioner’s] statement that this happened when the
victim ran into a wall, Mr. Gonzalez clarified that [Petitioner] stated that
the injury “probably” could have happened that way and agreed that the
victim often would “get mad and would throw himself backwards”
hitting a wall, this occurring during the relevant time period. Also,
[Petitioner] told Mr. Gonzalez that the victim had fallen off her mother’s
bed several weeks before when “he just threw himself backwards”;
however, there was no injury from that incident according to Mr.
Gonzalez.
Mr. Gonzalez was asked about his interview with Det. Long, and he
denied many of the statements that were attributed to him during that
interview - he never said he was Jose Hurtado and did not make any
apology for misrepresenting himself as such, and he denied saying that
no one else ever watched the victim or that [Petitioner] had “been lying
to [him] on different occasions.” He confirmed that he never told Det.
Long about the victim’s fall from the couch, explaining that he “didn’t
imagine it would cause something like that[.]”
On cross-examination, Mr. Gonzalez confirmed that he was at work
during the humerus injury, and [Petitioner] called him and told him “that
the child had fallen and hurt his arm” and needed to go to the hospital.
[Petitioner] did not drive according to Mr. Gonzalez. He stated that they
arrived at Southern Hills about one hour after [Petitioner] called him; he
believed that they “acted as quickly as possible” to get medical treatment
for the victim.
Mr. Gonzalez stated that there was no interpreter present at Southern
Hills and that he communicated effectively enough to hospital personnel
that day to inform them of how the child hurt his arm. He also stated that
[Petitioner’s] nephew continued to interpret for them with Ms. Rhodes
after they arrived at Vanderbilt on November 11. He stated that Ms.
Rhodes conducted her interview with both of them in the hallway of the
hospital. He further claimed that “a lot of the time” there was no
interpreter present at Vanderbilt and that he did the interpreting.
Mr. Gonzalez testified that he had never seen [Petitioner] commit any act
of abuse against the victim and averred that she took good care of the
victim. He further stated that [Petitioner] spent a lot of time with her
- 17 -
family, that the family was close, and that sometimes the victim’s
grandmother or aunts and uncles took him and cared for him.
Mr. Gonzalez stated that they were both present when the victim fell and
hurt his head in the living room but that neither of them actually saw it
because they were in the kitchen. [Petitioner] was preparing a bottle for
the child, and he was sitting at the kitchen table. According to Mr.
Gonzalez, this was the first time the victim had ever gotten out of the
walker, and there was a glass table in the living room, which was “rather
thick[.]” When the victim started to cry, [Petitioner] ran and picked him
up to make sure he was okay. According to Mr. Gonzalez, the victim
“cried a lot, but when she gave him the baby bottle[,] he calmed down.”
Mr. Gonzalez stated that there was “no blood, nor bruise, or like a bad
bump” on the child’s head, that “the child was normal [,]” and that they
“had no reason to expect any serious head injury[.]”
He reiterated that it was “two or three days after the accident” before he
noticed a bump on the child’s head. According to Mr. Gonzalez, he
made several calls to Vanderbilt “because when [he] went the first time
they wouldn’t see [him],” so “[he] called about four or five more times
before they made an appointment for [him].” He stated that it took
“three or four days” before they were seen by Vanderbilt, which
accounted for the delay in treatment.
Finally, Mr. Gonzalez testified the he did not know about any of the
other fractures or how they might have occurred. He further averred that
the victim never cried “a lot” in his presence while holding his arm or
leg.
At the conclusion of the State’s proof, the State made the following
election of offenses:
Count one of the [i]ndictment alleges an act of aggravated child
abuse committed against [the victim], (D.O.B. 9/8/08), and refers
to the following conduct: the [D]efendant caused the spiral fracture
to the left humerus of [the victim] on or about October 26, 2009.
Count two of the [i]ndictment alleges an act of aggravated child
abuse committed against [the victim], (D.O.B.9/8/08), and refers to
the following conduct: the [D]efendant caused a fracture to the
right ulna of [the victim] on a day in October 2009.
- 18 -
Count three of the [i]ndictment alleges an act of aggravated child
abuse committed against [the victim], (D.O.B.9/8/08), and refers to
the following conduct: the [D]efendant caused a fracture to the left
tibia of [the victim] on a date in late October 2009 through
November 4, 2009.
Count four of the [i]ndictment alleges an act of aggravated child
abuse committed against [the victim], (D.O.B.9/8/08), and refers to
the following conduct: the [D]efendant caused a bilateral skull
fracture to [the victim] on or about November 8, 2009.
Count five of the [i]ndictment alleges an act of aggravated child
neglect committed against [the victim], (D.O.B.9/8/08), and refers
to the following conduct: the [D]efendant neglected the welfare of
[the victim] on diverse dates between October 1, 2009 through
November 11, 2009 resulting in multiple fractures injuries, an
epidural bleed in his head, a cephalohematoma, and the
[D]efendant delayed seeking medical attention for these injuries.
[Petitioner] then testified in her own defense. Prior to moving in with
Mr. Gonzalez, she lived with her parents and received mail there,
including information regarding the victim’s insurance. According to
[Petitioner], the victim was nine months old and had never had any
health problems prior to moving in within Mr. Gonzalez in June 2009.
She was eighteen years old at that time.
[Petitioner] testified that about a month after she moved in with Mr.
Gonzalez, he began hitting her. He had also assaulted her at her parents’
house when they were not home. The abuse began by Mr. Gonzalez’s
“squeezing” [Petitioner]’s arms “hard” and refusing to let go and
escalated to his “hitting [her] with his fist in [her] face[,]” and throwing
her against a wall while choking her “very tightly with his hand.” The
abuse left multiple injuries, according to [Petitioner]. During one
episode, Mr. Gonzalez retrieved a knife and placed the knife in her
hands, put his hands underneath hers, and said that the “only way that he
would leave [her] alone” was for her to kill him. She stated that she
received a “small” cut on this occasion.
[Petitioner] confirmed that she never reported any of the domestic abuse,
although incidents happened daily “towards the end.” She stated that she
was afraid of Mr. Gonzalez, who had threatened to take the victim and
return to Mexico. One time she threatened to leave Mr. Gonzalez, he
took her phone from her so that she could not call any of her relatives
- 19 -
anymore. She was able to tell her sister-in-law, Jeannette Castro, about
the abuse, calling her sometimes during the abuse.
When asked how Mr. Gonzalez treated the victim, [Petitioner] said that
sometimes Mr. Gonzalez “would play very roughly” with him. She
elaborated, “He would grab him by the head and pick him up, he would
grab by the arms and pull him by the arms. And other times he would
turn him over, he would grab him by his legs and pull him by the legs.”
She protested to this rough play, which happened several times;
however, she never observed Mr. Gonzalez hit the victim “out of
anger[.]”
According to [Petitioner], on the day prior to taking the victim to
Southern Hills, where the left humerus fracture was discovered, she saw
Mr. Gonzalez “playing with him and he was lifting [the victim] from his
arms.” She described, “He picked him up by both arms” and “jerked
him up[,]” lifting the child over his head. [Petitioner] said that the victim
did not cry from this but instead “kept on playing.” She stated that she
followed her regular routine until the following morning when the victim
awoke and “couldn’t lift his arm.” Using her cell phone, [Petitioner]
called Mr. Gonzalez, who was at work, and they went to Southern Hills
hospital when he got home that day; all of which took about an hour,
according to [Petitioner]. She confirmed that she lied at Southern Hills
about the cause of the victim’s injury and stated that she did so because
Mr. Gonzalez, whom she feared, had told her to say the victim fell on his
outstretched arm.
When Ms. Rhodes arrived at [Petitioner’s] home the following day, her
nephew, Alexis, interpreted for her, although he did not speak English
very well. [Petitioner] stated that they gave her parents’ address at
Southern Hills “because the medical care for [the victim] had the address
of my parents.” According to [Petitioner], questions were often repeated
during this conversations with Ms. Rhodes.
Once at Vanderbilt on October 28, 2009, [Petitioner] claimed to repeat
the same story to the medical professionals: “I had taken the boy out for
a walk and he had fallen.” Mr. Gonzalez was with her at the hospital
that day and instructed her to continue with the initial story. [Petitioner]
claimed that Alexis continued to interpret for her with Ms. Rhodes but
agreed that an interpreter was present when she spoke with Dr. Green.
According to [Petitioner], following the victim’s examination on
October 28, Dr. Green “explained to [her] what was wrong with the
- 20 -
child[,]” and Ms. Rhodes told them that they could go home, “that the
doctor had said it was an accident.”
[Petitioner] was then asked to explain how the victim injured his head.
She replied,
That day, Vicente arrived, it was 7:30 at night, I was waiting on
him to get there so I could go in to bathe and he could stay with the
child. Vicente got there and we had dinner together as always, and
so then I told him, I said I was [going] to take a bath and for him to
watch the child, he said all right. I was bathing when I heard a
thump and I heard the baby cry. I came out - I stopped bathing and
came out quickly because I wanted to know what had happened to
the baby. When I got there, Vicente told me that he had gone to the
room and that he had left the child on the love seat.
....
He left the child on the love seat and the child had fallen from
there. He told me that he had hit himself very hard on the table
that’s in front of the love seat. . . . He told me that he had gone to
the room to get his cell phone quickly.
She described the victim as an “active child.” [Petitioner] claimed that
there were no “signs of any obvious injury” or she would have taken the
victim to the hospital. [Petitioner] said that, after the fall, the victim was
“crying a little bit[,]” she gave him a bottle, and “he calmed down.” She
believed that this head injury happened on Saturday, November 7.
The victim was “perfectly fine” throughout the evening following his
fall, according to [Petitioner]. The next morning they followed their
“normal routine[.]” Mr. Gonzalez first noticed a lump on the victim’s
head that Sunday night when he was “playing rough” with the child. She
had asked him to stop, but at one point, she left and went into the
kitchen, leaving the victim alone with Mr. Gonzalez. [Petitioner]
testified that Mr. Gonzalez called Vanderbilt “but a lady there told him
that she couldn’t give him any information because he’s not the father.”
[Petitioner] said that Mr. Gonzalez was lying when he testified that he
took the victim immediately to Vanderbilt Emergency Department upon
noticing the lump.
According to [Petitioner], she called Vanderbilt the following day, and
“they told [her] they couldn’t set up an appointment with [her] because
[the victim] already had an appointment for his two-year exam.” After
one more day, she finally convinced someone at Vanderbilt to make her
- 21 -
an appointment. The appointment was one more day after that, on
Wednesday, November 11, and she kept that appointment. Mr.
Gonzalez accompanied her and again instructed her on what to say to
hospital personnel. According to [Petitioner], Mr. Gonzalez told her “to
say that the boy had fallen from the walker and that he had hurt himself
with the table.” She confirmed that the true story was the one she
provided earlier in her testimony, that the child fell off the love seat.
When DCS came to take her child, she did not speak up because she was
fearful of Mr. Gonzalez.
Finally, [Petitioner] confirmed that the victim was frequently cared for
by members of her family. However, she agreed that she was never
informed of any injuries while the victim was in their care, only things
like “he would throw himself backwards” during a fit. She also averred
that the victim was never injured in her presence and that she never
failed to seek treatment for any type of injury. She confirmed that the
victim had not received any additional injuries since being removed from
her care.
On cross-examination, [Petitioner] testified that, since November 2009,
when the victim was removed from her custody, and until April 2011,
when she was arrested on these charges, she continued to live with Mr.
Gonzalez. He continued to beat [her], and she remained in fear. When
asked where would she live if she regained custody of the victim,
[Petitioner] stated that she did not “think” she would move back to Mr.
Gonzalez’s home, that she wanted to return to her parents’ home.
However, she then confirmed that, during her incarceration, she had
reconciled with Mr. Gonzalez, whom she loved, and that he had visited
her around fifty times and that they had possibly spoken “[h]undreds of
times” on the telephone.
She acknowledged that she never came forward with these allegations
about Mr. Gonzalez until mid-way through trial. She agreed that she
frequently lied, including saying that Mr. Gonzalez was Jose Hurtado,
but again claimed that she only did so because of her fear of Mr.
Gonzalez. [Petitioner] agreed that, by covering for Mr. Gonzalez in
October, she allowed her son to be returned home with her and Mr.
Gonzalez, even though she could have protected him by being truthful
and allowing DCS to remove him then. Stated another way, [Petitioner]
acknowledged that by lying she “put [her] son in harm’s way again[.]”
[Petitioner] testified that Mr. Gonzalez began assaulting her about a
month before she moved in with him. [Petitioner] claimed that, when
- 22 -
she stayed at the home of her parents, who spent a large amount of time
in Mexico, her sister Christina saw bruises that were inflicted by Mr.
Gonzalez. She confirmed that, despite this violence, she moved in with
Mr. Gonzalez anyway. According to [Petitioner], Mr. Gonzalez
threatened that, if she did not move in, then he would take her child from
her. However, she was in fact fearful that he may start hitting the child
once they lived together. [Petitioner] admitted that she stopped seeing
the victim’s biological father when he threatened to take the victim from
her to Mexico. Also, [Petitioner] stated that Mr. Gonzalez hit her once
in front of the victim.
[Petitioner] testified that her son had a high tolerance for pain. When
asked how the victim received the additional fractures, [Petitioner]
stated, “When one time when Vicente would grab him by his feet and he
would be shaking him very hard.” She claimed that the victim never
limped. [Petitioner] denied ever hurting her son in any way. She
confirmed that Mr. Gonzalez had not been charged with any of these
crimes.
On redirect, [Petitioner] confirmed her belief that Mr. Gonzalez never
intentionally hurt the victim. She hoped that he would have stopped
playing rough with the child.
Sergio Hurtado, [Petitioner’s] brother, testified that he and his wife had
custody of the victim for almost three years by the time of trial, and he
described the victim as a “very hyperactive child.” The victim had not
developed any additional injuries after being removed from [Petitioner’s]
care and placed with Sergio.
According to Sergio, when [Petitioner] had custody of the victim, the
family regularly visited one another, and they often took the victim on
outings. Sergio said that [Petitioner] “was always [a] very good mother”
and that he allowed [Petitioner] to care for his daughter while he was at
work. Sergio never observed any problems with the victim prior to
[Petitioner’s] moving in with Mr. Gonzalez.
Sergio’s wife, Francisca Angel-Espindola, described the victim as “a
very playful child, very naughty.” She confirmed that the family was
close and that they took the victim on outings when he lived with
[Petitioner]. Ms. Espindola agreed that [Petitioner] was “a good
mother[.]”
- 23 -
Ms. Espindola worked with [Petitioner] at Standard Candy Company.
After [Petitioner] moved in with Mr. Gonzalez, she noticed that
[Petitioner] became a “loner” while at work. Both Ms. Espindola and
Sergio noticed a personality change in [Petitioner] during this time
frame. According to Ms. Espindola, Mr. Gonzalez controlled
[Petitioner’s] money, and on one occasion, she witnessed a phone call
between [Petitioner] and Mr. Gonzalez, when Mr. Gonzalez was verbally
abusive to [Petitioner]. Ms. Espindola also saw bruises on [Petitioner’s]
hands one day at work, but this was after the victim had been removed
from [Petitioner’s] care.
Alexis Vasquez testified that he interpreted for a DCS case worker in
October 2009 and that he was twelve or thirteen years old at the time.
According to Alexis, he interpreted for the case worker both at
[Petitioner’s] home and at Vanderbilt. He stated that he had only been in
this country for about three years and did not speak English well at that
particular time. Alexis admitted that he gave different answers than
these a week before when asked by the assistant district attorney general.
Jeannette Castro, Jose Hurtado’s wife and [Petitioner’s] sister-in-law,
testified that the family was very close and spent frequent amounts of
time together. She also described the victim as “very hyperactive.”
According to Ms. Castro, [Petitioner] provided good care for her son and
often kept Ms. Castro’s daughter. Although Ms. Castro never personally
witnessed any domestic abuse, on multiple occasions, she went to pick
up [Petitioner] after she had been abused by Mr. Gonzalez or kicked out
of the house. Ms. Castro stated that she saw bruises on [Petitioner’s]
face, legs, and arms during these episodes. [Petitioner] mentioned Mr.
Gonzalez’s having a knife on one occasion, and according to Ms. Castro,
[Petitioner] “was fearful” of Mr. Gonzalez. According to Ms. Castro,
[Petitioner] was a “fun” and “happy person” prior to living with Mr.
Gonzalez, and once [Petitioner] lived with Mr. Gonzalez, the family
“hardly ever [saw] her.” Ms. Castro said that, whenever Mr. Gonzalez
was around the victim, the victim “totally changed.”
On cross-examination, Ms. Castro acknowledged that she did not inform
anyone of this abuse until after the State had closed its case-in-chief,
when she called Ms. Menke around 8:45 in the evening. She also
admitted that [Petitioner] never specifically told her that Mr. Gonzalez
caused the victim’s injuries; however, Ms. Castro asserted that she was
“a hundred percent” sure that [Petitioner] was not the one who hurt the
victim.
- 24 -
In rebuttal, the State called Emily Menke, a victim/witness coordinator
for the district attorney general’s office, who was assisting on this case
because she spoke fluent Spanish. Ms. Menke confirmed that she
received a call from Jeannette Castro following the close of the State’s
proof. Ms. Menke had also listened to recordings of conversations
between [Petitioner] and Ms. Castro and also between [Petitioner] and
Mr. Gonzalez. During the conversation with Mr. Gonzalez, the couple
continued to express their affection for one another. There was also
discussion to the “effect” that they would get back together, including
with the victim, if [Petitioner] was acquitted of these charges. They
never discussed any physical abuse during this call, and [Petitioner]
never suggested that Mr. Gonzalez was responsible for the victim’s
injuries.
State v. Angel Geovanna Hurtado, No. M2014-00180-CCA-R3CD, 2014 WL 7417763,
at *1-16 (Tenn. Crim. App. Dec. 30, 2014).
Post-Conviction Hearing
Trial counsel testified that he had practiced law for more than forty years, and the
last twenty years of his practice was primarily criminal law. He said that Petitioner was
the primary caretaker for the victim, who was “12, 13 or so months-old” at the time of the
offenses. Trial counsel noted that “what struck me about the injuries was the number of
injuries on this child and the location of the injuries.” He testified:
There was one to the head, I think maybe two separate injuries to the
head; arms, radius and ulna I think were fractured, then her [sic] lower
leg. And as we got discovery, I noticed that some were old fractures that
had healed on their own.
. . .
And some were healing, then we had the new one of which I think
brought this to bare, the shoulder injury, shoulder or arm injury, and I
believe during the course of treating the child for the shoulder or the arm
injury, a skeletal x-ray - - sorry CT was taken of the child, that’s when
all of the other injuries were detected.
Trial counsel noted that the charges against Petitioner were very serious due to the age of
the victim and the multiple injuries. Although Petitioner had no prior criminal record,
she faced a lengthy sentence due to the seriousness of the offenses.
Trial counsel testified that the prosecutor assigned to Petitioner’s case was not “the
most reasonable person in the world[.]” Trial counsel said that he was “always looking
for a way to resolve [Petitioner’s case] out of court.” He testified that there were multiple
- 25 -
discussion dates and pretrial motions. When asked if he received any settlement offers
from the State in Petitioner’s case, trial counsel testified:
Well, there was several, but as I indicated to you a little earlier, it started
out, in my recollection, real high, 20, 25 or so years, something like that,
and I think you mentioned or asked me at least whether or not that was
an offer of 12 years, it could have very well been, I cannot recall, I will
be honest with you, but, you know, generally in these situation[s] we
start out, at least the State will start out at a higher offer, and then you
have to try and negotiate it down, so it could have very well been at a
lower figure than that 20, 25 years.
Trial counsel specifically stated that he could not recall if there was an offer for twelve
years at one-hundred percent. It was trial counsel’s opinion that an offer of twelve years
“would have been too high for a first offender, to persons who had no blemishes on her
record or anything, I thought, and just to say this to you, I would have probably thought
that’s too high, we can do better.”
Trial counsel testified that it was his practice to always convey a settlement offer
to his client, and he would always counsel them as “best” he could. He noted that there
was a language barrier in Petitioner’s case; however, a certified interpreter from the court
was always present when he spoke with Petitioner in court or at the Department of
Correction. Trial counsel noted that Petitioner had a very large extended family, and he
also spoke with them, with Petitioner’s permission, candidly about the case. Trial
counsel testified that he would have communicated the seriousness of the evidence in
Petitioner’s case. He said:
Now I’m not saying per se the words, but I, probably because of the
seriousness of the charges, I probably would have said look, being a
number of charges here, they’re very serious, and if she was to be found
guilty, and normally in a situation like this I would say what it [sic] we
are 50 percent able to get an acquittal, we still have an awful lot of time
she’s potentially looking at if she’s found guilty, so that would have
been the way I would have communicated that to him or her.
Trial counsel recalled that Petitioner was interested in a settlement offer. He said,
“I believe [Petitioner] essentially left that up to me, the defense lawyer, yes, she wanted
to settle, but to what extent, . . ., she was waiting for me to get back with her with
something that I guess she found that she could live with.” Trial counsel testified that he
told Petitioner that it was ultimately her decision on whether or not to accept a plea offer.
He thought that he and Petitioner had a conversation on the day of trial concerning the
State’s plea offer. However, trial counsel was not certain that he was able to effectively
communicate everything to Petitioner because of the language barrier and due to her
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“age, her experience, just a number of things, put it all together.” He further said, “I have
tried and given it everything that I, but, in hindsight, look back on it, I probably needed
maybe a couple of days to fully get it engrained into her what was going on, what she
was about to step into.” Trial counsel admitted that during the year and a half that he
represented Petitioner before trial, he communicated with Petitioner. He said, “Oh yea,
we were communicating, but as we were going forward and the time became shorter, we
were having to adjust to different ways of communicating what it would be about.
Initially we had all this time, we got discussion dates and all that, there wasn’t that sense
of urgency or anything, so we were communicating, yes.” Trial counsel testified that it
got to the point where a decision had to be made.
Trial counsel testified that there was a lot of discovery in Petitioner’s case
including medical records. He did not recall if he gave Petitioner a copy of discovery,
but he reviewed it with her through the interpreter. He also reviewed the statutes with
Petitioner and attempted to explain the trial process to Petitioner.
Trial counsel thought that telephone calls were made to the State’s witnesses that
were providing expert medical testimony. He felt that he had a good understanding about
the “mechanics” of the victim’s injuries. Trial counsel recalled that one of the experts
testified that the victim would have experienced “severe pain” after the injuries. Trial
counsel thought that he “might have followed up on how long, why would there be severe
pain and things like that[.]”
When asked why he did not call an expert witness for the defense, trial counsel
testified:
Like I told you in the beginning, we have multiple injuries, head, two
fractures of the head, we have shoulder, we have arms, we have legs, one
of the State’s theor[ies] was that, I forgot what court it was, but they talk
about a swirling of, whatever they call it twisting?
. . .
Spiral. My expert would had to have had testified that a spiral injury
existed, that would have all but sealed that count. Then we’re talking
about neglect, one thing we do know, that these injuries occurred at
different times, different intervals, okay, a child, and some of them
probably would have occurred before the 13-month period, some might
have occurred 8 or 9 months, problem being with that, our expert would
had to have noticed those injuries, so if the State’s theory on abuse didn’t
happen, we would have sealed it for them on neglect.
Trial counsel specifically testified that he made a “judgment decision” not to call an
expert witness. He noted that Petitioner had given at least four different accounts of how
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the victim’s injuries occurred. Trial counsel testified that he would have called an expert
“had it been one or two different injuries[.]”
Trial counsel agreed that he employed Thomas Mark Bullard, a physician’s
assistant, to review the medical evidence in Petitioner’s case. It was noted at trial that
Mr. Bullard is now deceased. Trial counsel, Mr. Bullard, and an interpreter visited
Petitioner in May of 2012 to discuss Petitioner’s account of what happened to the victim.
He thought that he communicated to Petitioner that the victim’s injuries appeared to be
non-accidental, and there was a good chance that the jury would convict her based on the
medical evidence. Trial counsel testified that he would have based a “lot of [his] opinion
on what [Mr. Bullard] told [him].”
Trial counsel testified that he would have never told Petitioner that he could beat a
plea offer of twelve years at one-hundred percent. He said, “I would say that I would try
and get a better or lower offer, but I wouldn’t say that I can beat, because I never say
what I can do in a court.” Trial counsel also testified that he would never have given
Petitioner or her family any assurances that he would be successful in reaching an
acquittal at trial. Trial counsel thought that he saw Petitioner every two to three weeks
before trial, and he estimated that he visited her between seven and twelve times at the
Department of Correction.
On cross-examination, trial counsel reiterated that he could not recall if the State
made an offer of twelve years. He further did not recall if the State rescinded any plea
offers after the case was set for trial. Trial counsel testified that he always left the
decision whether or not to accept a plea offer up to his client. When asked if it was
Petitioner’s decision to go to trial, trial counsel said:
That is where I was trying on direct to make the point. This young lady
was in a situation where she had to make a quick decision and attempt to
fully communicate through an interpreter, I’m going to have to be as
honest as I can on this, I thought I was effective in informing her what
was going on, what was going to happen and what she would have to do
right now, as far as going to trial or not, and I believe the decision was, I
hate to go back and try to and say specifically what happened, all I know
is we were left with having to go to trial.
* * *
Left with having to go to trial. I’m not going to say that she looked me
in the eye and said, “No, I want to go to trial right now,”
because I can’t remember. All I can remember is that I attempted to say
this is where we are and do you understand, and I would have said “Do
you understand.” See I done [sic] found often time if you’re not
- 28 -
communicating, especially with my Hispanic clients, they can shake
their head, they can do things like this, but they don’t have a clue. I’m
not saying that happened here, but I’m just saying honestly I’m hopeful
that I communicated effectively with her.
In his professional opinion, trial counsel believed that Petitioner understood her right to
go to trial. Trial counsel also had a policy to ask a client, “Do you have any questions
about what’s going on,” and he was certain that he did not fail to ask Petitioner that
question. He said that Petitioner was able to ask questions, and her questions were
“appropriate to the subject matter.” Trial counsel testified that Petitioner “[m]ost
definitely” made the decision to go to trial.
Concerning claims of domestic violence against the victim by her boyfriend, trial
counsel testified:
Well, I initially I think that it did come up, the boyfriend was supposed
to have done that, I would go a little further and state that he was going
to even take the charge, and what developed as we got closer to trial and
as I indicted what the potential penalties would be, all of that just fell
through, so I got the impression from him that it did not happen. If that
had been the case, I think it would he would have been at trial, he was
not at the trial, we wouldn’t have been able to utilize that.
Trial counsel did not believe that domestic violence was an appropriate defense in
Petitioner’s case. He did not recall if a duress instruction was given to the jury at the
close of the trial. On re-cross examination, trial counsel agreed that there were jail calls
presented between Petitioner and her boyfriend during which they spoke at length
declaring their love for each other.
Trial counsel agreed that he made a strategic decision not to hire an expert in
Petitioner’s case. He felt that the expert would have “bolstered certain theories of the
prosecution,” and it “made no sense in hiring someone when obviously [he] saw all of
these different fractures in different locations.” Trial counsel further testified that the
only thing an expert witness would have established “was that fractures existed, old
healing fractures, fracture that was in the process of healing, new fractures, that’s the
only thin[g] he or she would have been able to do, and I didn’t see the need to hire
someone to tell me [what] was obvious.” Trial counsel testified that his main contact
with the Petitioner’s family was her brother.
Petitioner testified that her family hired trial counsel to represent her after her
arrest in May 2011. She said that trial counsel came every three weeks to four weeks to
see her. Sometimes he did not have an interpreter with him. Petitioner said that she
could not understand a lot of what trial counsel said when he did not have the interpreter
- 29 -
so he told her that he would come back with one. She did not receive a copy of discovery
from trial counsel. When asked if trial counsel reviewed discovery with her, Petitioner
testified: “He only explained to me the fractures that the boy had on his head, only about
the fractures and that was it.” She said that trial counsel explained the offenses that she
was charged with, and he “always said that he was going to help me and that he got the
case.” Petitioner understood that to mean that trial counsel was going to “do everything
he could to get me out of here[.]” Trial counsel told her that the State had to prove
certain elements of the offense to convict her, but he did not specifically explain to her
what the State had to prove beyond a reasonable doubt. Petitioner’s testified that trial
counsel told her that “they were worried, they were not worried about the bone fractures
on the [victim’s] arm, but they were worried about the bone fractures on the [victim’s]
head.” Petitioner said that trial counsel did not explain what would happen to her if the
jury convicted her.
Petitioner testified that she “really didn’t know” that she was charged with five
felonies, and trial counsel said something about “the 15 years, but he didn’t say anything
about the 20 years.” She said that trial counsel told her about a plea offer of twelve years
at one hundred percent and that he told her about the offer “around the third court date
that [she] had.” Petitioner testified that there was an interpreter present when trial
counsel told her about the offer. She said, “I asked him he would [sic] recommend that I
take it, and he said no, that was a long time for me since I didn’t have a criminal record,
ever.”
When asked how trial counsel told her that he could “beat” the charges against
her, Petitioner replied:
He said that the boy didn’t have any marks on his body, that nobody had
found anything, that I got my family and my family knew that I was a
good mother. I even think that my family gave him some videos about
the boy so they could see how the boy was.
Petitioner testified that the victim was very rambunctious and had a lot of energy. She
did not think that trial counsel presented any of that evidence to the jury. Petitioner
testified that she spoke with Mr. Bullard and trial counsel about the victim’s injuries. She
said, “From what I understood from the doctor [Mr. Bullard], he showed me the x-rays
for my boy from the arms, and he said that whatever he had on the - - on the tibia,
anybody could do that with anything.” Petitioner testified that trial counsel presented
Mr. Bullard as someone who would be testifying on her behalf at trial, but he never
showed up. Petitioner said that she thought Mr. Bullard was a doctor rather than a
physician’s assistant. She thought that trial counsel asked her parents for money to hire
Mr. Bullard, but she could not remember for certain. Petitioner testified that she felt
“safe” going to trial after speaking to Mr. Bullard.
- 30 -
Petitioner testified that she and trial counsel did not discuss her domestic situation.
At the time of the offenses, she was living with her boyfriend Vicente Gonzalez.
Because Petitioner’s father’s last name is also “Gonzalez,” in order to avoid any
confusion, we will refer to Petitioner’s boyfriend as “Vincente.” We intend no
disrespect. She said that Vicente was abusive toward her, controlling, and manipulative.
Petitioner also said that she was scared of Vicente; however, she continued to talk with
him throughout the course of her incarceration and trial. She thought that her sister-in-
law, Jeanette Castro, knew about the situation with Vicente. Petitioner did not know that
Vicente would be called as a witness for the State. She thought that he was going to
testify on her behalf.
Petitioner testified that at some point during the middle of trial, the State presented
audio recordings between her and Vicente. On the fourth day of trial, trial counsel began
asking her questions about domestic violence in the home. Petitioner testified that trial
counsel told her that it was important for her to tell the truth about her relationship with
Vicente. She felt that trial counsel should have found out more information about the
domestic violence because she did not know that it was important to her case.
Petitioner did not feel that trial counsel did an appropriate job investigating her
case, and communicating with her about the circumstances of her case. She thought that
he needed to “find out more with the doctor as he said, check the videos that my family
gave him, that’s all he told me he had.” Petitioner testified that she was twenty-years old
at the time of trial, and she had a sixth grade education. She obtained her GED while in
prison. Petitioner said that she did not understand the weight of the evidence against her,
but she understood the trial procedure, the role of witnesses, and function of the jury.
She “really” did not understand the role of the trial judge. Petitioner testified that trial
counsel did not tell her that the State was trying to convict her of some very serious
crimes and that some of her family members would be called to testify against her. She
admitted that the domestic violence claims were new to trial counsel during the trial.
Petitioner reiterated that she thought trial counsel was prepared for trial but now she
realized that he was not prepared because “he never disclosed to me that [sic] gravity of
the charges that I had.” She was surprised that the jury found her guilty of all five
charges because trial counsel always told her that “he was going to win.”
On cross-examination, Petitioner testified that she met and spoke with trial counsel
multiple times. She admitted that she never told trial counsel that she was abused by
Vicente. Petitioner further admitted that she professed her love to Vicente during their
phone calls while she was incarcerated, and he visited her forty-nine times in jail before
trial.
Petitioner claimed that she did not realize how serious her charges were because
Mr. Bullard told her that the victim had several fractures, “but that the fractures that he
had on his hand and on his feet, that anybody could have done those to him or they could
- 31 -
have been done with whatever thing and he could have proven that.” She agreed that
fractures to a child’s hands and feet are serious and that a skull fracture is serious.
Petitioner testified that she did not cause any injuries to the victim. However, if trial
counsel had explained that she would spend twenty-five years in prison, she would have
accepted a plea agreement. Petitioner testified that trial counsel told her that he would be
able to obtain a sentence lower than the plea offer of twelve years at one-hundred percent.
She thought that the offer was made on the third or fourth court date. She did not
remember any other plea offers. Petitioner testified that trial counsel told her that she
would have to go to trial if she did not accept the State’s plea offer. The choice was
made to go to trial.
On redirect examination, Petitioner testified that trial counsel did not explain the
theory of negligence, and he always told her that “the best thing was to go to trial.” He
never told her that pleading guilty might be in her best interest. Even though she did not
injure the victim, Petitioner said that she would have pled guilty if she had understood the
“weight of the State’s evidence against [her].” She was aware that the State’s doctors
would testify that the victim’s injuries were not accidental.
Pedro Hurtado Gonzalez, Petitioner’s father, testified that he contacted trial
counsel after Petitioner’s arrest in 2011. He thought that he spoke with trial counsel
every three to four days about Petitioner’s case. Mr. Gonzalez testified that trial counsel
never explained the seriousness of the charges against Petitioner. He said that trial
counsel indicated that they were going to hire a doctor as an expert, but Mr. Gonzalez
never met him. Mr. Gonzalez testified that he paid trial counsel $350 or $375 for the
expert, and he expected an expert to testify on her behalf at trial.
Jose Hurtado, Petitioner’s brother, testified that he helped interpret information
between Petitioner’s family and trial counsel. He said that trial counsel would meet with
him and other family members to tell them what he thought about Petitioner’s case. Mr.
Hurtado testified that trial counsel was “going to grab a doctor to physically check on
[the victim] and that he was going to charge something about 300, $350.” He said that
trial counsel led them to believe that the doctor would testify on Petitioner’s behalf at
trial. Mr. Hurtado testified that trial counsel never told them how serious the charges
were against Petitioner. He said that trial counsel “said that they were offering
[Petitioner] something between ten and twelve years, I really don’t remember, and he
said that that was ridiculous and that he was going to beat that case easily.” Mr. Hurtado
testified that trial counsel always said that everything was fine and going great. He said
that he only learned before the post-conviction hearing that Petitioner was serving a
twenty-five year sentence. Mr. Hurtado said that he and Petitioner’s family thought that a
twelve-year sentence was too long because the victim “didn’t have anything[.]” He
thought that Petitioner relied heavily on trial counsel and his opinion. Mr. Hurtado
admitted that common sense told him that a twelve-year plea offer would indicate that the
charges against Petitioner were serious, but he said that they trusted trial counsel.
- 32 -
Jeanette Castro, Petitioner’s sister-in-law and Jose Hurtado’s wife, testified that
trial counsel asked the family for money to hire a doctor but they never saw one. Ms.
Castro testified that she knew of the domestic violence between Petitioner and Vicente
Gonzalez because she picked Petitioner “up at 2:00 in the morning every time he beat her
up[.]” Ms. Castro said that she spoke with trial counsel about the domestic abuse before
and during trial. She knew that Petitioner remained in contact with Vicente, and she told
Petitioner to stop talking to him. Ms. Castro believed that Petitioner was being
manipulated by Vicente, and Petitioner was fearful of him. When asked how trial
counsel portrayed Petitioner’s case, Ms. Castro testified:
Not even once that I remember that he would say that the Court went
wrong or that she didn’t have any chances. Every time she called me
and said “What did [trial counsel] say,” I was like “Well he said
everything was going great, that everything was fine,” that she did not
take any, you know, pled, is that how you call it, plead, you know, just
keep on with the court and everything was going to be fine that all the
blame was going to be on Vicente, and that she was innocent and
nothing was gonna go wrong. So we, through the whole trial we always
knew, even before the trial he said everything was fine.
Ms. Castro testified that trial counsel never explained the seriousness of the charges
against Petitioner or the amount of time that she faced if convicted. She said that it
never occurred to the family to ask about the consequences of the charges.
Ms. Castro testified that in the courtroom trial counsel discussed with Petitioner’s
family a plea offer by the State. She said,
[H]e sat us all together and he said that, I think, I recall him saying
something about an offer, but he said, “No, that is stupid,” he said
“Don’t take it, we’re gonna win this case,” so we were like, okay, so we
never even thought about. If we would have known, we would have
talked to her or, you know, get another lawyer to help us out because we
knew she was innocent, so we would try to help her, but the way he said
it, we were like no, let’s wait and see what happens.
Ms. Castro testified that trial counsel requested “like 300 or something” for an expert
witness. She noted that Petitioner was twenty years old at the time of trial, and she
“barely made it to middle school, I think.” She did not think that Petitioner understood
what was going on at the time of trial.
On cross-examination, Ms. Castro testified that she did not report any domestic
violence incidents between Petitioner and Vicente to police. She said they all discussed it
- 33 -
as a family but did not call authorities. Ms. Castro said that it was up to Petitioner to call
police. She testified that she took Petitioner into her house four times because of the
abuse. Ms. Castro testified that the domestic violence incidents took place approximately
five months before the victim was taken to the hospital. She said that she barely talked to
Petitioner after the victim was taken to Vanderbilt Hospital. Ms. Castro testified that she
only told Petitioner’s parents about one incident of domestic violence. She was not
aware that Petitioner’s parents accompanied Vicente to visit Petitioner in prison at least
seventeen times. Ms. Castro was not aware that Petitioner called Vicente from jail on
several occasions professing her love for him.
Ms. Castro remembered trial counsel talking about a guilty plea offer. She did not
think that twelve years was a long time to serve in prison and that Petitioner would have
accepted that offer if trial counsel had told her that she faced twenty five years.
Analysis
Petitioner contends that trial counsel rendered ineffective assistance of counsel
because trial counsel: (1) failed to call an expert witness at trial; (2) failed to properly
investigate evidence of domestic violence between the victim and her boyfriend, Vicente
Gonzalez; and (3) failed to effectively communicate the State’s plea offer. Petitioner also
asserts that the cumulative effects of trial counsel’s errors “rendered the results of
Petitioner’s trial and appeal fundamentally unfair.” However, we find that the evidence
does not preponderate against the post-conviction court’s findings that Petitioner received
effective assistance of counsel.
To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103; Howell v.
State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner bears the burden
of proving his or her allegations of fact by clear and convincing evidence. T.C.A. § 40-
30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is clear
and convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an
appeal of a court’s decision resolving a petition for post-conviction relief, the court’s
findings of fact “will not be disturbed unless the evidence contained in the record
preponderates against them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).
A petitioner has a right to “reasonably effective” assistance of counsel under both
the Sixth Amendment to the United States Constitution and article I, section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington,
466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective
- 34 -
assistance of counsel, a petitioner must prove both deficient performance and prejudice to
the defense. Strickland, 466 U.S. at 687. Failure to satisfy either prong results in the
denial of relief. Id. at 697.
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, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
First, Petitioner contends that trial counsel was ineffective for failing to hire an
expert witness in the field of pediatric orthopedics to testify concerning the victim’s
injuries. However, Petitioner did not present the testimony of any expert witness at the
post-conviction hearing. In cases where a petitioner contends that trial counsel failed to
present a witness in support of the petitioner’s defense, the petitioner should present such
witness at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). Neither a trial nor an appellate judge can speculate as to whether that
witness’s testimony would have been favorable to the defense. Id. Therefore, the
petitioner should “produce a material witness who . . . would have testified favorably in
support of his defense if called [at trial]. Otherwise, the petitioner fails to establish the
prejudice requirement mandated by Strickland v. Washington.” Id. at 758. Because no
expert witness testified at the post-conviction hearing, the Petitioner has failed to show
that she was prejudiced by trial counsel’s decision to not call an expert witness at trial.
See id. at 757-58.
We also note that trial counsel employed Thomas Mark Bullard, a physician’s
assistant, to review the medical evidence in Petitioner’s case. Trial counsel, Mr. Bullard,
and an interpreter visited Petitioner in May of 2012 to discuss Petitioner’s account of
what happened to the victim. Trial counsel agreed that he made a strategic decision not
to call an expert in Petitioner’s case. He felt that the expert would have “bolstered certain
theories of the prosecution,” and it “made no sense in hiring someone when obviously
[he] saw all of these different fractures in different locations.” Trial counsel further
testified that the only thing an expert witness would have established “was that fractures
existed, old healing fractures, fracture that was in the process of healing, new fractures,
that’s the only thin[g] he or she would have been able to do, and I didn’t see the need to
- 35 -
hire someone to tell me [what] was obvious.” Petitioner is not entitled to relief on this
ground.
Next, Petitioner contends that trial counsel failed to “make proper investigation
and trial preparations for the issues of domestic violence presented at trial.” Concerning
this issue, the post-conviction concluded:
The decision not to introduce domestic violence evidence at trial was a
strategic one based on reasonable investigative efforts by trial counsel.
Petitioner testified that she never told trial [counsel] about the existence
of any domestic violence. Trial counsel’s knowledge of any claim of
domestic violence came solely from Petitioner’s sister-in-law, Ms.
Castro but not until the trial had begun. Further, trial counsel possessed
an audio recording of Petitioner and her boyfriend expressing a desire to
be together and a jail log showing that Petitioner’s boyfriend visited her
49 times in jail. Additionally, Petitioner never called the police to report
domestic violence between her and her boyfriend. Finally, the State
possessed an audio recording wherein Petitioner told her boyfriend she
loved him and did not seem fearful of him.
Trial counsel decided to forego a domestic violence defense only after
learning of the above information. He made the strategic decision that
domestic violence was not a viable defense, and he was not deficient in
this area. Id.
The record supports the post-conviction court’s conclusion. Concerning claims of
domestic violence against the victim by her boyfriend, trial counsel testified that he “got
the impression” from Vicente that the domestic abuse did not happen. Trial counsel also
did not believe that domestic violence was an appropriate defense in Petitioner’s case.
Trial counsel noted that there were jail calls presented between Petitioner and Vicente
during which they spoke at length declaring their love for each other, and Vicente visited
her 49 times in jail. At trial, Petitioner admitted that she reconciled with Vicente, whom
she loved, during her incarceration and that he had “visited her around fifty times and that
they had possibly spoken ‘[h]undreds of times’ on the telephone.” Hurtado, 2014 WL
7417763 at *15. Petitioner admitted at the post-conviction hearing that she never told trial
counsel that she was abused by Vicente, and he learned about the abuse from Ms. Castro.
Ms. Castro admitted that although she and other family members knew about the abuse,
they never called police. Therefore, trial counsel’s performance was not deficient in this
area.
Moreover, as pointed out by the State, Petitioner has not shown prejudice
concerning this issue. Petitioner testified at trial that Vicente was abusive toward her,
and she detailed alleged incidents of abuse by him toward her. Petitioner also testified
- 36 -
that Vicente would play roughly with the victim and that prior to the discovery of a
fracture of the victim’s left humerus, she had seen Vicente “playing with him and he was
lifting [the victim] from his arms.” Petitioner further described that Vicente picked the
victim “up by both arms” and “jerked him up[.]” Petitioner also testified that the victim’s
head injury occurred while Vicente was watching the child so that she could take a bath.
The jury heard testimony concerning alleged domestic violence against Petitioner and the
victim by Vicente Gonzalez but chose to convict her of aggravated child abuse, child
neglect, and reckless aggravated assault. Petitioner is not entitled to relief on this ground.
Thirdly, Petitioner argues that trial counsel was ineffective in the “plea negotiation
process.”
The right to effective assistance of counsel applies in all critical stages of
the criminal process, including plea negotiations. Nesbit v. State, 452
S.W.3d 779, 787 (Tenn. 2014). An attorney is required to “explain a
matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.” Tenn. Sup. Ct. R. 8,
RPC 1.4(b). When considering a plea, “counsel must advise the accused,
among other things, of the choices that are available to him as well as the
probable outcome of these choices.” Parham v. State, 885 S.W.2d 375,
384 (Tenn. Crim. App. 1994) (footnotes omitted); see American Bar
Association Standards for Criminal Justice 14 - 3.2 (“To aid [Petitioner]
in reaching a decision, defense counsel, after appropriate investigation,
should advise [Petitioner] of the alternatives available and address
considerations deemed important by defense counsel or [Petitioner] in
reaching a decision.”). An attorney, after providing “‘competent and
fully informed advice, including an analysis of the risks that the client
would face in proceeding to trial,’” must abide by the accused’s decision
to either accept or reject a plea. Nesbit, 452 S.W.3d at 787 (quoting Burt
v. Titlow, 571 U.S. 12, 25 (2013) (Sotomayor, J., concurring)).
Stephanie Ann Cole v. State, No. E201702036CCAR3PC, 2018 WL 3409237, at *6
(Tenn. Crim. App. July 12, 2018)
Concerning this issue, the trial court concluded:
Petitioner testified that trial counsel conveyed the 12-year plea offer to
her. In fact, every member of Petitioner’s family that testified at the
hearing admitted that trial counsel told them about the 12-year offer.
Petitioner further testified that she understood the trial procedures and
the role of the jury, and, despite the fact she thought the injuries could be
“explained away,” she understood the severity of the victim’s injuries.
Petitioner contradicted herself several times when asked if she
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understood about [ ] the nature of her charges, and overall did not carry
much credibility in this area.
Conversely, trial counsel’s strategy from the beginning of the case was
to resolve the case without going to trial because of the nature of the
injuries to the victim. Although trial counsel felt they could get a better
offer, he still communicated the 12-year offer to Petitioner and explained
the nature of the offer to her. Admittedly, trial [counsel] expressed
concerns about his effectiveness in communicating the plea offer to
Petitioner, he testified that he was very blunt with Petitioner and her
family about the risks of trial. He further testified that he made
Petitioner and her family aware of the likely outcome of trial and of
Petitioner’s significant exposure if convicted at trial. Trial counsel also
introduced Petitioner to physician’s assistant Mark Bullard, who
explained the high likelihood of conviction based on the victim’s
injuries. Finally, although trial counsel expressed a desire to obtain a
lesser plea deal, he never presented a deal to Petitioner that was less than
12 years and she elected not to accept the 12 year offer. It is
understandable that she would depend on trial counsel for guidance on
what she should do, trial counsel made it clear that it was her decision
alone on whether to accept the offer or go to trial.
Applying these facts to the 3-part Nesbit test, there is ample evidence
that Petitioner was adequately advised of the alternatives and the likely
consequences, trial counsel was not deficient in handling the plea
process and Petitioner was not prejudiced.
(emphasis added).
Again, the record supports the conclusion of the post-conviction court. Trial
counsel testified that although Petitioner had no prior criminal record, she faced a lengthy
sentence due to the seriousness of the offenses. He said that he was “always looking for a
way to resolve [Petitioner’s] case out of court.” Trial counsel could not specifically
recall if there was a twelve-year offer from the State, but it was always his practice to
convey settlement offers to his clients, and he would always counsel them as “best” he
could. Trial counsel noted that due to the language barrier in Petitioner’s case, he usually
spoke with her through an interpreter. He said that he would have communicated the
seriousness of Petitioner’s case to her and her family. Trial counsel testified that he told
Petitioner that it was ultimately her decision on whether or not to accept a plea offer. He
would have never told Petitioner that he could beat a plea offer of twelve years at one-
hundred percent, and he would have never given Petitioner or her family any assurances
that he would be successful in reaching an acquittal at trial. In his professional opinion,
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trial counsel believed Petitioner understood her right to go to trial and that she “[m]ost
definitely” made the decision to go to trial.
Petitioner claimed that she did not understand the seriousness of the charges
against her at the time that she went to trial. However, the post-conviction court did not
find her credible and noted that “Petitioner contradicted herself several times when asked
if she understood about [ ] the nature of her charges, and overall did not carry much
credibility in this area.” Petitioner admitted at the post-conviction hearing that she knew
that some of the victim’s injuries were serious. She also admitted that she understood the
trial procedure, the role of witnesses, and the function of the jury. Furthermore, trial
counsel thought that he communicated to Petitioner that the victim’s injuries appeared to
be non-accidental, and there was a good chance that the jury would convict her based on
the medical evidence.
In this case, the record shows that trial counsel properly advised Petitioner
concerning her options of going to trial or accepting a plea offer from the State, and
Petitioner made the decision to go to trial. Petitioner is not entitled to relief on this
ground.
Finally, Petitioner contends that she was denied the effective assistance of counsel
due to “cumulative errors.” Petitioner is not entitled to relief on this ground.
CONCLUSION
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
____________________________________________
THOMAS T. WOODALL, JUDGE
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