Caitlyn Metz v. State of Tennessee

Nashville, TN - Criminal defense attorney represented Caitlyn Metz with first-degree felony murder, aggravated child abuse, and aggravated child neglect charges.

The victim in this case was Petitioner's twenty-three-month-old son. CoDefendant was indicted for aggravated child abuse; first degree felony murder committed

during the perpetration of child abuse; and aggravated rape of a child, in connection with

the victim's February 7, 2009 death. Almost three years later, Petitioner was also

indicted for the same charges. On direct appeal, this court summarized the facts of the

case as follows:

A. Pretrial Motions

On February 22, 2012, [Petitioner] filed a motion to sever her case

from [Co-Defendant]'s case positing that "she d[id] not want any 'spill

over.'” At a hearing on the motion to sever, [Petitioner]'s counsel informed

the trial court that he had filed a motion to sever the cases at [Petitioner]'s

insistence. He said that he did not know if he had a colorable argument and

would not know until he was made aware of [Co-Defendant]'s defense. He

said that [Petitioner] had asked him to inform the trial court that she

believed that she and [Co-Defendant] had inconsistent defenses. He said

that [Petitioner] believed that [Co-Defendant] intended to contend that the

victim died of natural causes while [Petitioner] intended to contend that

[Co-Defendant] killed the victim and that she did not know anything about

the killing. The trial court stated that it could not rule on the severance

motion without hearing evidence and declined to rule on the motion. It

further noted that different defenses would not necessarily warrant a

severance. Counsel for [Petitioner] did not pursue this motion further.

The morning of trial, [Petitioner]'s counsel orally raised a Bruton

issue. The State informed the trial court that both Defendants had given

statements and that it intended to introduce them. [Petitioner]'s counsel

asked the trial court to redact a portion of [Co-Defendant]'s statement

where he said "so did she” in response to questioning about whether he

spanked the victim. [Petitioner]'s counsel also took issue with a portion of

[Co-Defendant]'s statement wherein he said that [Petitioner] had penetrated

the victim's anus on a prior occasion to treat the victim's constipation. The

trial court granted [Petitioner]'s motion to redact [Co-Defendant]'s

statement.

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B. Trial

At [Petitioner and Co-Defendant's] trial on these charges, . . . Jeffrey

Scott Bates, an emergency medical responder with the Montgomery County

Emergency Medical Services, testified that he responded to a call that the

victim was not breathing on February 7, 2009. Mr. Bates testified that,

when he arrived, [Petitioner] was holding the victim who was draped in a

blanket and [Co-Defendant] was "crying and dropping to his knees.”

Mr. Bates said that he looked under the blanket to find the victim

naked. He escorted the victim and [Petitioner] to the ambulance, took the

victim, and placed the victim on the cot in the back of the ambulance. Mr.

Bates testified that the child was "almost completely listless” but was

making some breathing effort. The breathing effort was "fish breathing or

agonal respirations,” which he explained as when a child opened its mouth

like it was trying to breathe every several seconds and then stopped. Mr.

Bates said he could not get any response from the victim.

Mr. Bates said that one of the victim's pupils was completely dilated

and the other pupil was sluggish. Mr. Bates intubated the victim and

transported him to the hospital. On the way to the hospital, while intubated,

the victim began to move in response to painful stimuli such as pinching his

toe. Mr. Bates said that the response was "decerebrate posturing,”

generally meaning that the victim had suffered a deep brain injury.

During cross-examination, Mr. Bates testified that his report of the

event stated that [Petitioner] stated that she had just arrived home to find

the victim face down on his bed and stable. The report also indicated that,

when Mr. Bates arrived, [Co-Defendant] was on his knees, crying, asking

Mr. Bates to "save” the victim.

Patrick Seay, an officer with the Clarksville Police Department,

testified that he responded to the 911 call in this case. He arrived at

approximately the same time as the ambulance and fire department. Officer

Seay said that, when he arrived, he saw [Co-Defendant] wearing a pair of

[a]rmy fatigue style pants and not wearing a shirt or shoes. He said that

[Petitioner] was located near the apartment, which was down a sidewalk

from where [Co-Defendant] was located. Officer Seay could see that

[Petitioner] was carrying something in her arms, but emergency responders

went to her right away and took the child.

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Officer Seay said that, as this was an ambulance call, he spoke with

[Co-Defendant] only to ascertain what had happened. The officer said that

it took a long time for [Co-Defendant] to stop crying as he was "very

upset.” Eventually, [Co-Defendant] told him that [Petitioner] had gone to

the commissary to shop and that he was there at the apartment alone with

the victim. He was bathing the victim and left the bathroom briefly. [CoDefendant] said the victim was playing and splashing in the tub, and he

only left the room for a minute or so to get some clothing and a towel for

the child. [Co-Defendant] said that, when he came back into the bathroom,

the victim was lifting his head out of the water and coughing and spitting

up water.

Officer Seay testified that [Co-Defendant] said that the victim

seemed "okay” when [Co-Defendant] removed him from the tub. [CoDefendant] said that he dried the victim off, dressed him, and laid him in

his crib. [Co-Defendant] said that he stayed in the victim's room for twenty

to twenty-five minutes. When the victim seemed to be doing okay, he left

the child and went and took a shower. [Co-Defendant] said that, after he

got out of the shower and came back in, the victim appeared to be sleeping

peacefully, so he decided to lie down in his own bed and take a nap. He

awoke when [Petitioner] screamed that the victim was not breathing, which

was when he called 911. Officer Seay said that [Co-Defendant] did not

indicate that the victim had suffered any additional injuries.

Mark Crump, a store director with the Fort Campbell Commissary,

identified a receipt from the commissary dated February 7, 2009, at 12:05

p.m. The receipt, entered into evidence, confirmed this date and time and

showed purchases totaling $132.26.

. . . .

Randle Likes, a staff physician at Gateway Medical Center

emergency department, testified that he treated the victim on February 7,

2009. He recalled that the victim was in "severe distress” when the victim

arrived at the emergency room. By the time that Dr. Likes treated the

victim, the victim had been intubated with a breathing tube because

emergency room personnel believed the victim was going to have difficulty

protecting the airway secondary to the other injuries he had received. Dr.

Likes said that he attempted to work on the child as quickly as possible so

that he could transfer the child to Vanderbilt where better trauma

capabilities were available.

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Dr. Likes recalled that the victim was not conscious. He said that

the victim suffered injuries to his head, his buttocks, and his genitalia. He

specifically had "a lot” of swelling, bruising, and marks in his anal region.

Dr. Likes testified that he spoke with [Petitioner], who told him that the

victim's bottom was red before she left for the store but that, when she

returned, she found him in severe distress.

During cross-examination by [Co-Defendant]'s attorney, Dr. Likes

testified [that Petitioner] made a point to tell him that she had been gone

before discovering the victim in distress.

Brandi Batson, a nurse at Gateway Medical Center at the time of this

incident, testified that she was present when the victim was brought to the

emergency room. She said that [Petitioner] was approximately fifteen feet

away from the victim while the victim was lying in the hospital bed. Ms.

Batson said that she asked [Petitioner] where all the marks on the victim

had come from, and [Petitioner] "[s]hrugged her shoulders and looked

away.”

Melanie Suiter Menear, also a nurse at Gateway Medical Center at

the time of this incident, recalled that she performed a sexual assault kit on

[Co-Defendant] to gather evidence. She said that she noted that [CoDefendant] had recently showered and shaved his pubic hair, which limited

her ability to gather evidence. Ms. Menear said that, when she first

encountered [Co-Defendant], she found his conversation with her "very

inappropriate seeming for the position that [they] were in at th[at] time.”

She said that his demeanor was different than any other male suspect that

she had ever interacted with. During cross-examination by [CoDefendant]'s counsel, Ms. Menear agreed that she did not know when [CoDefendant] shaved or whether that was something that he customarily did.

Gregory Plennons, a pediatric physician with Vanderbilt University

Medical Center, testified that he was assigned to the victim's case as part of

a care team that rotated calls when a child was admitted with an injury that

was suspicious as "nonaccidential.” Dr. Plennons recognized photographs

of the victim and said that he spoke with [Petitioner], inquiring about

various injuries on the victim's body. Dr. Plennons asked [Petitioner]

about the victim's eye injury, and [Petitioner] told him that four or five

days before being hospitalized the victim had been "mudding” in a Jeep

with [Co-Defendant]. She said that the victim had been in the front seat

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with his [step]father and had fallen out of the car and hit his head on the

edge of a door.

When Dr. Plennons asked [Petitioner] about the bruises to the

victim's bottom, which were reflected in a photograph, [Petitioner] did not

provide an explanation. She did tell the doctor that she and [Co-Defendant]

did "spank the boy when he's bad.” She said that she thought that the

victim "bruised a little bit more than the average two-year-old” and that she

mentioned this to a doctor in Oregon.

During cross-examination by [Co-Defendant]'s counsel, Dr.

Plennons testified that he did not recall whether [Petitioner] said that she

was also present when the victim was injured during the "mudding”

incident. Dr. Plennons confirmed that [Petitioner] had told him that she

spanked the victim.

Thomas Abramo, a pediatric emergency medicine doctor who was

employed at Vanderbilt Children's Medical Center at the time of this

incident, testified that he was the Division Director of the pediatric

emergency department when the victim was admitted to the hospital. Dr.

Abramo testified that, when the victim was transferred to Vanderbilt on

February 7, 2009, he was "very sick.” He said that the victim was

intubated, his vital signs were very critical, and that his symptoms indicated

he had significant brain swelling and signs that his brain was causing

significant cardiovascular compromise. The victim had obvious bruises

and bleeding.

Dr. Abramo testified that he did a full evaluation of the victim's

body. He opined that the victim suffered both physical and sexual abuse.

He noted that there were injuries to the victim's anal area, penis, and

genitalia. He considered the trauma to the genitalia area to be "significant.”

During cross-examination by [Co-Defendant]'s counsel, Dr. Abramo

testified that his notes indicated that there also appeared to be old bruising

marks on the victim. These marks appeared to be more than a day old. Dr.

Abramo noted that children suffering brain trauma often presented

differently. Some deteriorated immediately and others did not deteriorate

for a longer period of time.

Curtis Wushensky, a radiologist at Vanderbilt Medical Center who

specialized in the brain and the spine, testified that he read the scan taken of

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the victim. He said that the victim's brain was "completely swollen” and

that there was a lack of separation between the crooks of the gray and white

matter. He also observed some blood along the surface of the brain in the

subdural space. Dr. Wushensky said that it was impossible to tell how long

it had been since the initial trauma, but he estimated that it took six to eight

hours for the injury to manifest.

Dr. Wushensky explained that, while the skull of a small child could

slightly expand, the skull is very "nonexpansible.” He explained that when

a brain is injured and starts to swell it has no place to go, so the pressure in

the brain will increase. Eventually, if the brain continues to swell, it will be

forced through the neck, similar to a tube of toothpaste. Also, the pressure

can increase to a point where a person's heart cannot force blood into the

brain, and the brain will be starved of blood.

During cross-examination by [Petitioner]'s counsel, Dr. Wushensky

said that most of the studies of this type of trauma had been conducted on

adults and not children. Dr. Wushensky agreed that he could not say with a

medical degree of certainty how long it took for the victim's brain to swell

to the condition that he saw in the scan.

During cross-examination by [Co-Defendant]'s counsel, Dr.

Wushensky said that the scan was performed at 3:58 p.m. on February 7,

2009, the day the victim was brought to the hospital. Dr. Wushensky

agreed that six to eight hours before 3:58 p.m. would have been before 9:00

a.m. The doctor clarified, however, that he could not be certain that it took

this long for the brain to swell, stating that the swelling can occur more

rapidly in some situations.

Miranda Parker, an employee with Child Protective Services in

Clarksville, Tennessee, testified that she was assigned to the victim's case

on February 7, 2009. She went to Vanderbilt Children's Hospital in

Nashville where she saw and photographed the victim and spoke with

[Petitioner]. Ms. Parker identified the photographs that she took of the

victim and said that they accurately depicted how he appeared while lying

in the hospital.

The photographs showed bruises on the victim's nose and forehead,

bruises to his genitalia and his inner thighs, as well as an abrasion near his

anus. Other pictures showed bruises on the victim's left ear, which was

swollen and red, and bruising to the victim's right eye. Another photograph

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showed that the victim had bruises all over his buttocks, a bruise to his right

lower chin, and bruising around his neck. Another photograph showed that

the victim had a bruise on his right ear, which was also reddened. Another

photograph showed that the victim's left ring finger was reddened.

Ms. Parker testified that [Petitioner] told her that, when the victim

had awoken that morning, she fed him cereal. [Petitioner] said that the

victim was potty training, so he wore underpants and not a diaper.

[Petitioner] told her that she took the victim to use the restroom and that he

was whining, so she put him in time out. [Petitioner] told her that the

victim "was spanked” several times before she left to go to the grocery

store.

Ms. Parker said that [Petitioner] told her that, when [Petitioner]

returned from the grocery store, the victim was lying naked face down in

his bed. [Petitioner] also told Ms. Parker that the victim had received a

spanking on the Tuesday before the Saturday of his hospitalization. She

also said that he had fallen out of the Jeep while [Petitioner and CoDefendant] were "mudding” in their Jeep.

During cross-examination by [Co-Defendant]'s attorney, Ms. Parker

testified that [Petitioner] told Ms. Parker that she was the parent who had

spanked the victim on the Tuesday before his hospitalization and that she

had noticed that her spanking him had caused him bruising. Ms. Parker

said that she found [Petitioner]'s demeanor unusual because [Petitioner]

was not crying or visibly upset. [Petitioner] was using her cell phone to

send and receive text messages during the interview.

Ms. Parker also noted that, during the interview, she told [Petitioner]

that the State may place the victim into foster care, and [Petitioner]

responded "great; that's another thing I'll have to deal with.” When Ms.

Parker asked [Petitioner] if she was from Grants Pass, Oregon, [Petitioner]

responded, "[Y]eah, because I'm cool that way.”

Ms. Parker said that, at one point, [Petitioner] called the victim's

biological father, who apparently had little to do with the victim.

[Petitioner] did not ask about the welfare of the victim or his prognosis

during the interview. Ms. Parker said that she found [Petitioner]'s behavior

so odd that she noted it in her report. Ms. Parker said she did not interview

or speak with [Co-Defendant].

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During cross-examination by [Petitioner]'s attorney Ms. Parker

testified that she spent between one and two hours with [Petitioner]. She

agreed that she was not an expert in grief and loss. She agreed that she had

previously met individuals who did not react emotionally when grieving.

Neil Phillips, a pediatrician at Grants Pass Clinic in southern

Oregon, testified that the victim became his patient after the victim was

born on March 7, 2007. Dr. Phillips recalled that the victim was "typical”

in that he grew appropriately and had a normal number of colds and ear

infections. Dr. Phillips said that the victim had to have tubes placed in his

ears because of the number of ear infections he suffered, but the doctor said

that this was also not unusual. Dr. Phillips said that, while the victim was

in his care, [Petitioner] was unmarried. He said that she was the only one

who brought the victim to see him. He said that, during the time he treated

the victim, he did not suspect any sort of abuse. He said that [Petitioner]

also did not mention any concern that the victim was bruising too easily,

and the doctor did not see any indication of such a condition.

Adele Lewis, a forensic pathologist with the Nashville Medical

Examiner's Office, testified as an expert in forensic pathology. She said

that she performed an autopsy of the victim's body on February 10, 2009.

Dr. Lewis determined that the victim's cause of death was multiple blunt

force injuries and that the manner of death was homicide.

Dr. Lewis said that she found blunt force injuries "all over” the

victim's body. She noted that he had injuries to his head and neck, his

chest, his abdomen, his back, his buttocks, his legs, and his right arm.

When asked which injuries she considered lethal, she said that "the injuries

to his head were the most lethal of those injuries.” Dr. Lewis noted that it

would take a "significant” amount of force to cause the victim's injuries,

force equivalent to a "major car wreck” or a "two or three story fall.” Dr.

Lewis saw bruising patterns on the victim's head that were consistent with

knuckles striking the forehead.

Dr. Lewis said that, as part of the victim's injuries, his brain swelled.

The problem with the brain-swelling injury was that there was nowhere for

the brain to go when it became swollen because it was confined by the

skull. Therefore, the brain would lose blood flow, escape down the spinal

cord, and the victim of such an injury would become brain dead.

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Dr. Lewis noted that the victim's injuries included bruises to his

eyelids. Those injuries led her to look for retinal hemorrhage, or bleeding

in the layers inside the back of his eye. The victim had "many, many of

those hemorrhages” inside his eyeballs as well as in the nerves that

connected his eyeball to his brain. Dr. Lewis said that, while she was not

certain, it had been theorized that those injuries were the result of

acceleration and deceleration injuries, such as when a child is forcefully

shaken. Dr. Lewis said that, in addition to acceleration and deceleration, it

was possible these injuries could be the result of the victim's head striking

something, considering all of the external bruising to his head.

Dr. Lewis testified that the victim suffered injuries to the right side

of his neck. She classified those injuries as "petechial or pinpoint

hemorrhages,” which most commonly occur when a victim is choked or

strangled. Dr. Lewis noted that the victim had redness on his fingertips.

She said that this could have been the result of "a lot of things,” such as

forceful pinching, or from the victim's hand striking an object, or from an

object striking the victim's hand. Dr. Lewis said that it would have been a

normal response for a twenty-three-month child to try to shield himself

from the blows that he received, and the injuries to his fingers were

consistent with this. Dr. Lewis identified three bruise marks on the left side

of the victim's face. She said that they were consistent with slap or knuckle

marks. Dr. Lewis also testified that the victim's left ear was "very swollen

and red” and that there was some bruising to the front side of his ear. She

said that when she bent the victim's ear back she saw that there was also

bruising there as well.

Dr. Lewis identified a photograph of the victim's buttocks, scrotum,

and penis. She said that there was bruising to the left side of his scrotum,

and "linear or line like bruises to the inside of his thighs.” Dr. Lewis said

that these injuries were not consistent with falling down. Dr. Lewis

identified for the jury innumerable red bruises on the victim's buttocks. Dr.

Lewis said that her examination revealed that there was bleeding into the

deep soft tissues of the buttocks. This indicated that there was a significant

amount of force used to inflict those injuries. Dr. Lewis also determined

that the injury to the victim's buttocks was "fresh,” meaning that it

occurred at around the same time as the other injuries. The buttocks injury

was not consistent with a fall. Dr. Lewis said that the victim had a large

blue-purple bruise that went all the way around his anus. There was also a

small fissure, or small tear, at the edge of his anus. This injury was

consistent with the victim's anus being penetrated.

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Dr. Lewis opined that a child who sustained injuries as severe as the

victim's [injuries] would have "immediately become symptomatic in some

way.” These symptoms would have been to the extent that a "normal”

person would know that something was wrong with the child. The child

would have become unconscious, have had seizures, vomited, or

experienced a change in his breathing pattern. Dr. Lewis said that it was

difficult for her to estimate a time period in which these injuries occurred,

especially since the victim survived in the hospital for a day before going

on life support for two more days while awaiting an organ donation.

During cross-examination by [Co-Defendant]'s attorney, Dr. Lewis

testified that the victim's body had already been "opened” before she

conducted his autopsy. She stated that the victim had been pronounced

brain dead, so he was eligible to have his organs removed. As such, the

victim's thymus gland, liver, gallbladder, spleen, kidneys, pancreas, and

intestines had all been removed before the autopsy, and so she could not

test or examine those organs. The doctor who removed the organs, Dr.

Becher, consulted with Dr. Lewis during the autopsy. Dr. Becher told Dr.

Lewis that he thought this was a case of a shaken child rather than a child

who had received a blow injury. Dr. Lewis agreed that, with injuries this

significant, one would expect to see a skull fracture if it was a blow injury,

but there was no skull fracture.

Dr. Lewis said that it was possible that the victim would have had

discoloration to his feet, meaning they could have turned bluish, when he

was not getting enough oxygen. Dr. Lewis also agreed that, if the victim

were asleep, his symptoms might not be noticeable because it would appear

that he was sleeping. The doctor maintained that the victim's symptoms

would have been immediate after the injury but said that they would have

gradually gotten worse. She agreed it was possible that they would have

started out as mild symptoms and then gotten worse.

About the anal injury, Dr. Lewis testified that it was consistent with

penetration but that she could not be certain that it was a penetration injury.

During cross-examination by [Petitioner]'s counsel, Dr. Lewis

testified that Dr. Becher was a specially trained pathologist who specialized

in the brain. Dr. Lewis said that she placed the victim's brain in

formaldehyde and then asked Dr. Becher to examine it. Dr. Becher

examined only the victim's brain and not the outside of his head. Dr. Lewis

said that in a traditional shaken child case the brain shows injury but there

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is no injury to the outside of the head. Dr. Lewis said that, while the

victim's brain was consistent with the brain of a child who had been

forcibly shaken, the outside of his head showed external injuries.

Alan Charvis, a homicide detective with the Clarksville Police

Department, testified that he interviewed [Petitioner], who gave him a

written statement on the day of the victim's injury. Her statement was

admitted into evidence. . . .

[The victim] started to whine so [Co-Defendant] came

in [the victim's] room from the bathroom while his head was

still lathered with shaving cream.

[Co-Defendant] told [the victim] to go to the "[boo]ger

corner” (time out corner). . . . He started whining again so I

spanked him not hard. Then I got dressed and stood in [the

victim's] room.

. . . .

[The victim] got another spanking by me for whining

but not hard. [Co-Defendant] sat down on [the victim's] bed

and told him to go stand in front of [Co-Defendant]. [CoDefendant] and I told [the victim] that he was there for

whining & crying.

. . . .

Then I went in [the victim's] room and kissed [the

victim] goodbye and went downstairs. I picked up my purse,

keys and put my shoes on. As I headed out the door I said "I

love you baby” and shut the door behind me.

When I left [the victim's] but[t] was red a light bruise

[and] his feet had a little discoloration, but I thought that was

from him locking his knees.

It took me 20 mins-25 mins to get to Fort Campbell

and another 5-10 mins to get to the commissary. I did the

shopping I needed to do and checked out at 12:05 p.m. Then

I brought the groceries to my car and left to go to class six

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which is right next to the commissary. I walked in got a pack

of Budweiser and checked out.

I walked to my car and put the beer in my trunk and

left. I then drove home which took another 20-25 mins.

I tried to call [Co-Defendant] [four] times to let him

know I was on the way home. He didn't answer.

When I got home I took my purse [and] keys and

locked the door, opened the front door and set down my stuff.

I walked upstairs to say I was back and to get help

with the groceries. [Co-Defendant] was l[y]ing down in bed

and he had just beg[u]n to wake up. I went into [the victim's]

room and I said his name and he didn't answer. I called his

name again but louder and he didn't answer. I attempted to

move him by moving his body and it was limp. His right eye

was open and his left eye was shut but stuff was coming out

of his eye. He wasn't breathing much.

He was sleeping on his stomach. I picked him up and

began to cry. I screamed "O S* *t!” and [Co-Defendant]

came running in say[ing] "What! What!” I said, "[the

victim's name]!” And I told him to get my purse and keys

and walked quickly downstairs. [Co-Defendant] said "I am

naked!” and quickly ran downstairs. He said "my son! He's

not breathing, get here quick! Hurry! Help!” then said

goodbye to the person on the phone. I was sitting on the

bottom step holding [the victim] crying trying to talk to him.

I told [Co-Defendant] to get me a blanket for him and

then after [Co-Defendant] handed me a blanket he put on his

ACU pants and kept checking outside for the ambulance.

Then he said that they were there and I walked outside

with my son with a blanket around him to the ambulance.

The detectives asked [Petitioner] if [Co-Defendant] had ever lost his

temper with the victim, and she responded "No if [Co-Defendant] ever

g[ets] upset he will go mudding or go somewhere in the house away from

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both of us to think and collect himself.” She was also asked if [CoDefendant] had ever hit or spanked the victim. She responded "No, he has

only spanked [the victim] with his hand, never using any objects or

weapons.”

Detective Charvis testified that, during his interview with

[Petitioner], she appeared "more worried about [Co-Defendant] than she

was [about] anything [else].” He said that she repeatedly asked to know

what was going on with [Co-Defendant] and she did not ask about the

victim until toward the end of the interview.

The detective identified a statement that [Petitioner] later wrote at

the District Attorney's Office three years after this killing. Detective

Charvis read it to the jury, and it largely comported with the statement that

she had given to him. The statement differed in that [Petitioner] said that

she called [Co-Defendant] fourteen times while at the grocery store. It also

differed in that she said that, after she found the victim listless in bed and

[Co-Defendant] came into the room, she asked him "what the hell

happened?” She said that [Co-Defendant] responded that he did not know.

[Petitioner] also said in her second statement that [Co-Defendant] told the

911 operator that he "loved [his] son, please help” and that he began to cry

as she brought the victim downstairs. [Petitioner] said that [Co-Defendant]

kept running outside looking for the ambulance while she rocked the

victim, telling him that he was not alone, that Mommy was there, and that

she loved him. [Petitioner] said that, when emergency personnel loaded her

limp son on the ambulance bed, she sat "bawling” her eyes out.

Detective Charvis said that he subpoenaed [Petitioner]'s phone

records. They showed that [Petitioner] had called [Co-Defendant] at 10:38

a.m., 10:47 a.m., 11:00 a.m., and 11:56 a.m. Her receipt showed that she

checked out of the commissary at 12:05 p.m. She then called [CoDefendant] at 12:14 p.m., 12:18 p.m., and 12:34 p.m.

Detective Charvis testified that he interviewed [Co-Defendant] twice

on February 7, 2009, and that he cried throughout the interviews. During

the first interview, [Co-Defendant] said that he had put the victim in time

out and had given the victim a "couple of swats” for whining that day. He

described them as "light.” [Co-Defendant] described the victim as a "smart

boy” but said that they were "just trying to work on him.”

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During the interview, [Co-Defendant] said that [Petitioner] left and

went to the store. He said she was gone approximately two hours. [CoDefendant] said that, while she was gone, [Co-Defendant] took the victim

out of the corner and talked to him for "thirty minutes” telling him what he

had done wrong. [Co-Defendant] then took the victim to the potty because

he was using sign language to express that he had to urinate. The victim

did not use the potty, so [Co-Defendant] said he decided to give the victim

a bath because he was dirty from eating breakfast. [Co-Defendant] put

bubbles in the bath, and he recalled that the victim was "happy as ever,”

asking where his mama was. [Co-Defendant] said that he went to get the

victim pajamas for his naptime, which was around noon, and he was going

to lay him down to sleep. [Co-Defendant] said that, as he came back into

the bathroom, he saw the victim "like lifting himself up from being like

underwater.” [Co-Defendant] noted that the victim was "smart as hell” and

"really independent.”

[Co-Defendant] told Detective Charvis that, when the victim lifted

his head from underwater, he was coughing but not whining or crying.

[Co-Defendant] picked up the victim and tapped him and he coughed a

little bit. [Co-Defendant] said he dried the victim off and laid him in bed.

[Co-Defendant] said he stayed with the victim for twenty to twenty-five

minutes and allowed the victim to fall asleep. [Co-Defendant] said that he

then went and took a shower, checked on the victim who appeared to be

sleeping normally, and then went to take a nap. When [Petitioner] returned,

she screamed the victim's name. [Co-Defendant] knew from the way that

she said the victim's name that something was wrong. [Co-Defendant]

described how he went to the victim's room and tried to revive him. He

said that the victim was "totally limp” but was breathing and had a

heartbeat, so he and [Petitioner] were confused about his condition. He

said that they immediately called 911.

[Co-Defendant] opined that the victim's injuries were a result of the

victim slipping in the bath. He said he was only gone from the bathroom

for a minute or a minute and a half. [Co-Defendant] asked to see the

victim.

Detective Charvis reminded [Co-Defendant] that the interview was

being recorded and asked [Co-Defendant] to tell the truth. He reminded

[Co-Defendant] that the victim suffered bruises and knots on his head and

bruises on his buttocks. [Co-Defendant] opined that the bruises on the

victim's buttocks were a result of his learning to pull up his underwear or

- 16 -

because he had been falling out of [Co-Defendant]'s truck. He said that the

victim's bottom would get red from their spankings but said that they were

not "like hard spankings.” He noted that the spankings would "go up in

numbers” if the victim kept "being bad and won't stop.”

Detective Charvis said, "So how do you explain . . . a lick on his

head . . . [and] that his eyes were all messed up.” [Co-Defendant] said he

did not know. Detective Charvis told [Co-Defendant] that either [CoDefendant] or [Petitioner] had done something to the victim. [CoDefendant] said that the victim had fallen "out of [his] truck so many times,

it's all right. Boys are able to you know, boys got to be boys. You know

how it is, when you grew up? You would fall down, you know, hurt your

head?” [Co-Defendant] said that he had never hurt the victim. He

expressed frustration at not knowing how the victim was doing or how

[Petitioner] was handling the situation. [Co-Defendant] said that he did not

see [Petitioner] hurt the victim in any way and only saw her give him some

spankings. He agreed that no one else had control over the victim other

than himself and [Petitioner].

In a second interview, about thirty minutes later, Detective Charvis

informed [Co-Defendant] that the victim was still alive and that the doctors

were running tests to try to find out what happened to the victim. Detective

Charvis informed [Co-Defendant] that there was a "slap mark” on the

victim's face and asked how that occurred. [Co-Defendant] informed

Detective Charvis that it was not "a slap mark” and that the detective would

have to "ask [the victim]” how he got the mark. Detective Charvis

informed [Co-Defendant] that the victim's anus had been penetrated. [CoDefendant] said that the victim's anus had never been penetrated and that

he was "tired of [Detective Charvis] attacking him.”

During cross-examination by [Co-Defendant]'s counsel, Detective

Charvis said that [Co-Defendant] cooperated with him fully during the

interview. He said that [Petitioner] did not appear upset or cry while she

was writing out her eighteen-page statement. She did not ask about the

victim until toward the end of the statement, and she did not seem

concerned about him. Detective Charvis agreed that [Co-Defendant] did

appear upset when he gave his statement and also asked to see the victim on

multiple occasions. He agreed that he did not see any pictures of groceries

in the crime scene photos.

- 17 -

Detective Charvis testified that the police collected items from

[Petitioner and Co-Defendant's] residence. Some of those items, a shirt, a

pipe, a rag, paper towels, and swabs from firearms, were sent to the

Tennessee Bureau of Investigation ("TBI”) for testing. A rape kit

performed on [Co-Defendant] was also sent to the TBI for testing, along

with sheets and blankets.

During cross-examination by [Petitioner]'s counsel, Detective

Charvis testified that it was not important to his investigation whether the

Defendants' groceries had come into the home or were left in the car. He

said that a suspect crying in his presence did not mean that they were

genuinely upset.

[Co-Defendant] recalled Ms. Batson [to the stand], who added that,

while [Petitioner] was at the hospital with the victim, [Petitioner] remained

about fifteen feet from the bed, never going over to the bed, touching her

child, or crying. Ms. Batson said that [Petitioner] never expressed concern

about what was wrong with the victim.

[Co-Defendant]'s counsel then read a portion of the medical records

into the record. It stated:

I spoke with the Nursing Staff at bedside this morning,

who reported [that Petitioner] continues to have a flat affect.

. . . .

[Petitioner] asked for how she could get a copy of the

patient's medical records for herself. [Petitioner] said she

knew the case was going to [c]ourt and all she wanted was to

have a copy. I provided the [Petitioner] with the number to

the medical records here and encouraged her to call after one

week so the draft documents could be signed off.

. . . .

[Petitioner] asked if I knew how she could get rid of

the family truck and other belongings. The mother said she

knew that they would need to sell things, so she wasn't sure

how to go about this. We talked about her posting signs in

the buildings on post and putting an ad in the paper.

- 18 -

[Petitioner]'s attorney also presented a portion of the medical

records from Vanderbilt. That record indicated that [Petitioner] was

"grieving appropriately during this time evidenced by her crying, holding

the [victim's] hand and writing the [victim] a goodbye letter. [Petitioner]

met with the [c]haplain as well.”

The jury convicted [Co-Defendant] of aggravated child abuse, firstdegree felony murder committed during the perpetration of aggravated

child abuse, aggravated child neglect, first-degree felony murder committed

during the perpetration of aggravated child neglect, and aggravated sexual

battery. It convicted [Petitioner] of aggravated child abuse, first-degree

felony murder committed during the perpetration of aggravated child abuse,

aggravated child neglect, first-degree felony murder committed during the

perpetration of aggravated child neglect, and facilitation of aggravated

sexual battery.

State v. Joshua R. Starner and Caitlyn Metz, No. M2014-01690-CCA-R3-CD, 2016 WL

1620778, at *1-14 (Tenn. Crim. App. Apr. 20, 2016), perm. app. denied (Tenn. Aug. 18,

2016). "The trial court sentenced [Co-Defendant] to life in prison for the felony murder

conviction and fifteen years for each of the remaining two convictions, aggravated child

abuse and aggravated child neglect.” Id. at *1. "The trial court ordered that [CoDefendant]'s fifteen-year sentences run concurrently with each other but consecutively to

his life sentence.” Id. "The trial court sentenced [Petitioner] to the same sentences but

ordered that all her sentences run concurrently.” Id. This court affirmed the convictions

on direct appeal. Id.

Post-Conviction Hearing

Petitioner filed a post-conviction petition and an amended petition through

counsel, alleging that she was denied the effective assistance of counsel because trial

counsel (1) filed a deficient pretrial motion to sever; (2) abandoned the pretrial motion to

sever; (3) failed to file a comprehensive bill of particulars; (4) failed to challenge the

child neglect statute as unconstitutionally vague; (5) failed to investigate; (6) failed to

consult with and advise Petitioner; (7) failed to obtain expert witnesses; (8) failed to

adequately and effectively challenge objectionable jury instructions; (9) failed to tender

special jury instructions; (10) failed to object to improper prosecutorial argument and

improper argument by Co-Defendant's trial counsel; (11) failed to present a defense; (12)

failed to engage in pretrial negotiations; and (13) failed to question potential jurors.

Petitioner also argued that she was denied due process because the State (1) withheld

favorable evidence in violation of Brady v. Maryland; and (2) engaged in improper

prosecutorial argument.

- 19 -

At the post-conviction hearing, trial counsel testified that he had over thirty years'

experience as a criminal law attorney and was retained by Petitioner's mother to

represent Petitioner. He said that Co-Defendant was initially charged with the victim's

murder and that Petitioner was charged three years later. He did not recall how many

times he spoke with Petitioner before trial. Trial counsel stated that he did not keep any

time records on criminal cases where he was retained. He recalled "vaguely talking to

[Petitioner] about the case” but did not remember where or how that occurred. He said,

"I'm sure I sent a copy [of discovery] to her. If she was in Oregon, I'm sure I did that.

We probably talked at length over the phone. We probably talked about it when she was

in my office.”

Trial counsel did not recall if he filed pretrial motions in Petitioner's case but

agreed with post-conviction counsel that "part of [his] obligation of representing a person

charged with a serious crime like murder” included "the need to file pretrial motions[.]”

He agreed that he filed a pretrial motion to sever just two weeks after Petitioner was

indicted, the timing of which suggested that "it was important to try to get a severance[.]”

Trial counsel agreed that he did not want Petitioner sitting next to Co-Defendant at trial.

He explained,

[M]y defense was going to be that [Co-Defendant] did it. And the

jury was going to be mad, and I didn't want to be sitting at the same table if

I could avoid it. Because our defense was to try to throw off on the exhusband. And if we were at separate trials, then the jury could have taken

out all of their anger on him. And then maybe after that I could have cut a

deal with the State for something less.

Trial counsel also filed a Motion to Dismiss based on lack of evidence, which the

trial court denied. He agreed that he told the trial court that he was filing the motion "at

[his] client's insistence” and that the trial court would not rule on the motion until it

learned what the defenses would be. Trial counsel agreed that, in Co-Defendant's

counsel's opening statement, she "point[ed] the finger at [Petitioner].” He agreed that

Co-Defendant's defense was that Petitioner's lack of emotion indicated that she was the

one who killed the victim. Trial counsel stated that he felt like this defense was "out of

the blue.” Trial counsel agreed that, after he learned what Co-Defendant's defense theory

was, he "abandoned” the motion to sever.

Trial counsel stated that, if he saw a need, he would investigate mental health

issues. He recalled Petitioner having a "flat affect” and said that she "seem[ed] to lack

emotion.” He explained, "I never saw anything when I talked with [Petitioner] that

indicated to me that she had mental problems or emotional problems that warranted an

evaluation or an investigation. I never saw that. She had a flat affect.” Trial counsel

- 20 -

believed her lack of emotion would make her a poor witness. Trial counsel agreed that

"there was a lot made of her flat affect at the hospital and . . . at other times as well” by

the State and Co-Defendant. Trial counsel agreed that, when he had a client with a "flat

affect,” it would "help to know whether they were suffering from mental illness[.]” He

did not recall whether Petitioner told him that she was admitted to Middle Tennessee

Mental Health Institute ("MTMHI”) shortly after the victim's death, that she attempted

suicide, or that she sought psychiatric treatment once she moved to Oregon. Trial

counsel did not recall whether he asked Petitioner about her mental health history. Trial

counsel did not interview her psychiatrist or grief therapist from Oregon and did not

obtain any records from MTMHI. The following exchange occurred:

Q. If you were aware that she had -- was diagnosed with depression,

Disassociation Disorder, anxiety, and Post-Traumatic Stress Disorder that

might be something to explore in preparing a defense for her. Right?

A. If that was the only defense that I had, yes.

Q. Okay. And it might be something that would rebut the evidence that she

showed a flat affect at the hospital, that was so damaging against her at

trial?

A. I don't -- yes. That -- I don't recall there being any information about

people having a flat affect. I felt like [Co-Defendant's counsel] just

brought that up somewhat out of the blue. I was not expecting that[.]

Trial counsel agreed that a criminal defense attorney should "continue to

investigate a case” and that the "investigation involves evidence that [counsel] might

anticipate by the prosecutor” and by "Co-[D]efendant's counsel[.]” Trial counsel did not

remember if he presented any defense witnesses at trial but agreed that a defense attorney

had a duty to interview both prosecution and defense witnesses. Trial counsel recalled

speaking with "whoever authored the autopsy report” but did not speak with any other

medical personnel. Trial counsel did not interview Ms. Parker, the social worker who

testified against Petitioner. Trial counsel stated, "I don't recall if I talked to anybody. I

was probably focused on cause of death.”

Trial counsel spoke to "two or three” police officers but did not remember their

names. He did not interview any witnesses from Oregon whom Petitioner identified

regarding her good character as a mother. Trial counsel remembered receiving some

letters from potential witnesses from Oregon and believed "there might have been offers

to come and testify.” Trial counsel did not follow up with any of these letters. He did

- 21 -

not speak with any witnesses who could testify as to how she was grieving the loss of her

child. Trial counsel subpoenaed no one as a witness for Petitioner.

Trial counsel testified that he knew Co-Defendant was in the military but did not

investigate his military records.1

He explained, "My defense was that [Co-Defendant]

did it, and that [Petitioner] was at the Commissary when the child was killed.” Trial

counsel agreed that, if Co-Defendant's military records showed that he had a tendency to

be violent, it would have been important to investigate that.

Trial counsel agreed that, during opening statements, he stated, "She didn't kill

that baby. She loved [the victim].” Trial counsel agreed that he did not present any proof

at trial that Petitioner loved the victim.

Trial counsel stated that, in his discussions with the prosecutor,

[The prosecutor] told me that he considered for a while the fact she

didn't have anything to do with the death of [the victim], that every other

assistant [district attorney] in the office was fussing at him for not charging

her.

So, yes, he told me why he didn't charge her initially. Because he

didn't think she had anything to do with it, initially.

Trial counsel stated that approximately ninety-eight percent of his cases "settle”

instead of going to trial and that he went to trial approximately four times per year. He

stated that Petitioner's mental health issues likely would not have affected settlement

negotiations with this particular prosecutor.

On cross-examination, trial counsel stated that he did not see anything in

Petitioner that caused him to think he should request a mental health examination. He

agreed that some people have a flat affect and that "that's just the way some folks are[.]”

Trial counsel agreed that the proof showed that only Petitioner and Co-Defendant had

access to the victim around the time of his death. He stated that interviewing any of the

medical professionals in the case would not have changed his defense theory. Trial

counsel stated that he asked Petitioner several times about possible abuse from CoDefendant and that he "never got so much as an inkling” except for "one incident where

[Co-Defendant] spanked the child too hard[.]” He agreed that the prosecutor told him



1

In addition to the military records detailing Co-Defendant's dishonorable discharge, CoDefendant's medical records indicated that he was treated at a military hospital or clinic. Thus, we will

refer to the discharge records and the medical records collectively as the "military records.”

- 22 -

that, if Petitioner admitted that Co-Defendant abused the child and that she knew about it

and did nothing, Petitioner may have received a favorable settlement offer. Trial counsel

stated that he repeatedly explained to Petitioner that she had to admit Co-Defendant

abused the child or she would go to trial. Petitioner never agreed to make that admission.

Trial counsel said that he believed Petitioner told him what she knew about what

happened.

Trial counsel stated that evidence from character witnesses in Oregon who saw

Petitioner two months before the murder would not be relevant. He did not recall Ruth

Converse asking him to subpoena her so that she could testify on Petitioner's behalf. He

stated:

What I felt was the jury was going to be mad, and [the victim] had

bruises of various ages literally from the top of his head to the bottom of his

feet. If I started putting up witnesses to say what a great mom she is they

might even be more offended instead of less offended. That was my fear.

And then they would be subject to cross-examination with the

photographs of [the victim]'s body.

Trial counsel stated that he would not have put Petitioner's suicide attempt in front

of the jury "[b]ecause it's easy enough for [the prosecutor] to say she tried to kill herself

because she killed that baby.” He said that he would not have put on proof of Petitioner's

Dependent Personality Disorder because it would not rise to the level of insanity and

agreed that the prosecutor could "argue to the jury, basically, well, she has a Dependent

Personality Disorder. So[,] she just sat there and watched him do it and covered up for

him because that's what he wanted.”

Trial counsel testified that he did not know what he would have to do to get army

psychiatric records. He said that Petitioner never mentioned any domestic violence or

emotional abuse against her or the victim, except for "a little over-disciplining in the

spanking department.” Trial counsel said that, if Petitioner had told him about domestic

violence, he would have thought about Battered Wife Syndrome as part of his defense

strategy.

On redirect examination, trial counsel agreed that, when he has had clients who

were victims of domestic violence, they "often ha[d] difficulty revealing that[.]” Trial

counsel stated that he never spoke to anyone in Oregon to ascertain whether Petitioner

was a domestic violence victim. The following exchange took place:

- 23 -

Q. Now, seriously, as a professional attorney, you can't really render a

professional opinion today on whether you would use something until

you've had an opportunity to obtain it and review it[,] right? . . . [Y]ou're

not going to sit here today and say I would use something or not use

something without having had an opportunity to review the records[,] right?

A. Correct.

Q. In fact, if you do -- if you are aware of mental health issues, you obtain

the records, and you review them. Right?

A. Yes.

. . . .

Q. You might even consult with another expert and say what do you think

about this, right?

A. Yes.

. . . .

Q. And, at a minimum, you'd want to talk to the psychologist -- the

therapist who actually conducted the evaluations and the treatment of your

client. Right?

A. Yes.

Q. And, of course, we know none of that happened in this case?

A. That's correct.

Q. Because as you said you didn't see anything when [you] met with

[Petitioner].

A. Correct.

Q. And you may have only met with her one time, right?

A. Met with her, talked with her. I just never saw anything that indicated it.

But, yes.

- 24 -

Q. But your meetings with her may have been limited to one time, right?

A. I don't remember how many times. It wasn't many.

Trial counsel did not recall Petitioner having a "forensic hypnosis evaluation” or

Petitioner asking trial counsel to send a forensic hypnosis report to the prosecutor. Trial

counsel agreed that Petitioner tried "over and over to . . . convey that she had no hidden

memory or know anything about what [Co-Defendant] did or didn't do to [the victim]”

and that the forensic hypnosis report was her effort to explain that to the prosecutor.

Sheri Phillips, Co-Defendant's trial counsel, testified that she came onto the case

close to trial. She agreed that her theory of the defense was that Petitioner had inflicted

the victim's injuries. Ms. Phillips recalled stating in her closing argument that Petitioner

"was so unemotional that her mannerisms and snide comments were inappropriate” and

that she was texting "the whole time” and "making snide comments” to the Department

of Children's Service ("DCS”) worker. Ms. Phillips believed that she received that

information in discovery "well in advance of trial.” She stated that she interviewed

people regarding these comments "[t]o find out more about why [Petitioner] acted that

way.” She agreed it was a "central part” of Co-Defendant's defense theory that Petitioner

acted and spoke in an inappropriate way.

Ms. Phillips testified that there was no one besides Petitioner and Co-Defendant

who had access to the victim on the day of the murder. She did not recall ever speaking

to trial counsel about what to expect at trial, though she remembered one meeting

together with the prosecutor to make sure they both had discovery. Ms. Phillips agreed

that there was "no plan for a joint defense in this case.” Ms. Phillips remembered

interviewing the medical examiner, the radiologist, a nurse, police officers, the DCS

workers, and her client prior to trial. She stated that she met with Co-Defendant "over a

dozen” times.

On cross-examination, Ms. Phillips stated that the witnesses' trial testimonies were

consistent with the information in discovery. She said that she did not engage an expert

witness because "there was [not] any other cause that could have been the cause of [the

victim's] death.” She said that she did not file a motion to sever; she did not want it

severed because she "wanted [Petitioner] in on this[.]”

On redirect examination, Ms. Phillips agreed that, because she had interviewed the

medical examiner, Ms. Phillips was able to ask questions about the timing and cause of

death. She agreed that trial counsel did not ask the medical examiner any questions. She

- 25 -

agreed that investigating the time of death was something important to explore "to give

effective assistance” to her client.

Ruth Converse testified that she had been a "home visiting nurse” with Josephine

County Public Health in Oregon for twenty years. She stated that she had asked to testify

at the post-conviction hearing on behalf of Petitioner and that she had also asked trial

counsel if she could testify at trial. Ms. Converse stated that she had testified in many

cases in the past, both for and against the State. She stated that she had been involved in

cases in the past where a child had died. Ms. Converse stated that she met Petitioner

through Medicaid, which referred every pregnant woman in the county to Ms. Converse.

She began meeting with Petitioner when Petitioner was pregnant with the victim, and

they discussed nutrition, labor and delivery, breast-feeding, and newborn care. She

worked with Petitioner and the victim until the victim was almost two years old. Ms.

Converse testified:

One of the things I charted was [Petitioner] was very open to

everything I said. She wanted to do everything exactly right. Very

concerned. If she had any -- anything that she thought -- oh, shouldn't he

be doing this yet? I'd have to calm her down and say some kids do it really

early, and some do it really late. But she wanted to make sure she was

doing everything exactly the way she was supposed to so that he would do

things right. . . . I just wanted to voice how -- what a protective and

concerned mama she was.

So[,] she made her own baby food. She was -- she didn't start him

on -- we like to progress and do solids. She was afraid of him choking. So

I had to encourage her, it's okay to start offering him a little more foods

that he can pick up. She didn't want him to choke. She didn't want

anything bad to happen to him.

. . . .

I also put in here that she talked to him all the time. She read books

to him every night. She was just a very involved mom. Which I didn't

always see. I saw lots of moms. But with her she was a very involved

mom, following everything that I suggested. She was on it and doing it.

Ms. Converse stated that she never had any concerns regarding Petitioner's

treatment of the victim and that they had "[v]ery good bonding. He would light up when

he saw her face.” Ms. Converse never saw bruising or injuries of any kind. She said that

- 26 -

she was shocked when she learned Petitioner was charged with the victim's murder

"[b]ecause that [wa]s not the person [she] knew.”

Ms. Converse said that she learned the name of Petitioner's trial counsel and

contacted him to ask to be subpoenaed to court. She said that, as a county employee,

their legal department needed a subpoena to "clear [her] to be able to talk.” Trial counsel

told Ms. Converse that he would not need her and would not use her if she came. She

requested that trial counsel find an expert in child brain development. She explained to

him that,

[T]he reason we have children rear-facing in car seats is because their

brains don't have a myelin sheath that covers it. You get those -- you get --

they grow successively. You don't get your last one until you're in your

[thirties].

But that's why they have -- one of the reasons they have to be rearfacing is because if their head gets bounced around they're much more

likely to swell faster and bleed faster and react faster than -- so I just

wanted him to have someone explain that to the jury.

Ms. Converse also wrote to trial counsel to explain to him that Petitioner was one

of "the top” mothers she had worked with and was "an amazing mama[.]” She also sent

trial counsel a list of questions he should ask witnesses to make sure certain issues were

addressed at trial. She said, "I knew [Petitioner], and there [was] nothing inside

[Petitioner] that could have been involved with that.”

Ms. Converse stated that she had worked with many families who had lost a small

child. She agreed that a parent who just received news about the death of a child can

have "a wide range of different types of reactions and responses.” She said, "I have ones

who just withdraw. I can't get a response from them. . . . [P]eople respond differently

based on their own personality and based on their own experiences.” Ms. Converse

explained that her opinions on parental reactions to the death of a child come from her

bachelor's degree in nursing, her training as a psychiatric nurse, and her training in

domestic violence. She agreed that lay persons would also know that people react

differently to traumatic events.

On cross-examination, Ms. Converse stated that, in addition to Medicaid referrals,

she gets referrals from doctors' offices for patients with traditional insurance. She agreed

that Petitioner was only around Co-Defendant for a few weeks prior to marrying him.

Ms. Converse stated that, although Petitioner and Co-Defendant had gone to high school

- 27 -

together, they had not been around each other long enough for Petitioner to determine

whether he was abusive.

Ms. Converse agreed that Petitioner was "competent” and did not have

"diminished mental capacity.” She said that Petitioner's behavior during the home health

visits was "appropriate.” Ms. Converse stated that Petitioner's second child was removed

from her in Oregon but that Ms. Converse disagreed with the court's decision and went to

court to express that. Ms. Converse denied that her passion for this case was a result of

her working with Petitioner's mother.

Lauranne DeHoff Thatcher testified that she was a retired mental health

professional from Oregon and that she worked with her local community mental health

program for thirty years. She stated that she worked almost exclusively with sexual

abuse victims for about ten years and worked in crisis psychiatry with suicidal and

homicidal clients for five years.

Ms. Thatcher stated that she knew Petitioner for about ten years through

Petitioner's mother, her co-worker. She said that she saw Petitioner and the victim twice

a week after the victim was born. She testified:

Well, I was very, very impressed with [Petitioner] as a mother

because she was always patient, always calm. Things are not like that at

my house. Everyone is yelling at everyone else. But she just had a very

sweet, gentle way about her with [the victim]. And I was so taken with her

as a mother that I thought, well -- you know, my daughter was getting ready

-- or actually had her own son. And I thought, well, I could learn some

lessons from -- you know, how -- because [the victim] was so well-behaved

and so good and happy and sweet. And I never heard a voice raised. . . .

[S]he was very soft-spoken, kind, encouraging. . . . And I just noticed that

there was no yelling.

Ms. Thatcher never saw any anger, acts of violence, or cruelty from Petitioner

towards the victim or anyone else. She never saw any behavior between Petitioner and

the victim that caused her concern, and she never saw Petitioner discipline the victim in

an inappropriate way. She agreed that she was not around Petitioner and the victim for

the seven weeks after Petitioner moved to Tennessee.

Ms. Thatcher stated that she sent a letter to trial counsel, at the request of

Petitioner's mother, stating her opinion of Petitioner as a mother and her concerns that

Petitioner had PTSD after the death of the victim. Ms. Thatcher recalled speaking with

trial counsel on the telephone: "I said[,] [']I was hoping you could help me understand

- 28 -

why you're not asking for a separate hearing for [Petitioner] from [Co-Defendant]

because she really had nothing to do with it. And also it would be in her best interest not

to be tried along with this person.[']” Ms. Thatcher stated that she did not discuss

Petitioner's mental health on the phone with trial counsel because she did not have a

chance. She explained, "He didn't want to hear anything from me.” She agreed that she

detailed her mental health concerns in her letter to trial counsel.

On cross-examination, Ms. Thatcher stated that she only met Co-Defendant once

and "thought he was a bit peculiar.” She explained that she had to pass a series of exams

and tests to become a "mental health examiner.” She agreed that the precipitating event

to Petitioner's PTSD could have been a failure to prevent the victim's murder and that

she did not actually know what caused the PTSD. Ms. Thatcher believed Petitioner "was

in denial for so long” because she wanted "a happy family” with "a father for [the

victim].”

On redirect examination, Ms. Thatcher said that she was prepared and willing to

be a witness at trial if called and that she prepared the letter "explicitly for the use of

[Petitioner's] defense for her attorney[.]”

Deborah Ann Maranov testified that she had known Petitioner since she was born

and was Petitioner's godmother. She said that she spent "lots of time” with Petitioner

and the victim doing different activities. Ms. Maranov observed Petitioner "right down

there on the floor, you know, crawling with him, reading to him, playing with him,

nursing him[,] . . . teaching him, encouraging him.” She said that Petitioner's apartment

was very clean with "[l]ots of baby toys.” Ms. Maranov never saw Petitioner get rough,

aggressive, violent, or lose her temper with the victim. She observed good eye contact,

"lots of hugs and kisses,” "[a] lot of affection[,]” and "[r]eally good nutrition. She made

her own baby food.” Ms. Maranov agreed that she did not see Petitioner and the victim

"for a month or two” after Petitioner moved to Tennessee.

Lisa Reaves Holley testified that she had known Petitioner since they were in

fourth grade and that they grew close after high school. She said that Petitioner was

"always very quiet, never got in trouble at school, very well-mannered, soft-spoken,

never [had] any kind of aggression.” Ms. Holley stated that she never saw Petitioner

angry and that she "was always very happy.” She testified that, when Petitioner was

expecting, she spoke to Petitioner every day, helping her set up a nursery, passing down

baby clothes, getting coffee, watching movies, and playing board games. Ms. Holley

stated that Petitioner was excited about her pregnancy although nervous about being a

single mom. She observed Petitioner with the victim from the time he was born until

they moved to Tennessee. She explained:

- 29 -

They were very close. She was a very loving mom, very nurturing.

She breastfed him until she couldn't anymore because of his milk allergy.

And then at that time he was on soy formula, I believe.

I remember her not wanting even baby foods. I remember her not

even wanting to buy jar baby foods for him. She wanted to give him all the

best, all the natural foods for him. She meal-planned. She'd have like a

chalkboard thing that she kept up and meal-planned and did meals.

She was always reading to him. She had a very well -- her

apartment was very nice. When she got her apartment I helped her decorate

her apartment and helped her put together his room.

. . . .

[Petitioner] had pictures of [the victim] and her together. He had his

own bedroom. There [were] pictures of him and her in the bedroom. He

had a very nice room. Crib and dresser. She played lullaby music for him

at nap time and bedtime.

[S]he was always very good about keeping him on a routine and

keeping him at a set schedule for nap time and bedtime. She was always

good about that.

. . . .

[After] she started doing college classes, . . . [s]he put him in a brand

new, very nice day care center. I even remember her telling me about some

day care she interviewed and them being dirty or not cleaned. She didn't

get a good feeling about them. So I know she wanted the very best for him.

Ms. Holley testified that she never observed Petitioner discipline the victim in an

inappropriate way or be rough with him. She said she never heard Petitioner yell at any

of Petitioner's children or lose her temper. She recalled Petitioner teaching the victim

sign language when he was a baby and posting flashcards around the house to label

things.

Ms. Holley knew of Co-Defendant from high school but did not know him well.

She agreed that she was not in Clarksville at the time of the murder but stated that she did

speak to Petitioner on the phone and through text after Petitioner moved to Tennessee.

Ms. Holley recalled asking trial counsel if she could be a witness for Petitioner at trial.

- 30 -

She explained that she was "sick” when she heard Petitioner was arrested because it

"wasn't the [Petitioner] that [she] knew[.]”

On cross-examination, Ms. Holley stated that she had one phone conversation and

several texts with Petitioner after Petitioner moved to Tennessee. She said that Petitioner

mentioned she and Co-Defendant were having some parenting differences and that they

were "seeking counseling and that [Petitioner] was trying to get help for [CoDefendant].” Ms. Holley asked Petitioner if everything "was okay,” and Petitioner "got a

little bit quiet.” Ms. Holley asked Petitioner if Co-Defendant was hurting her or the

victim, and Petitioner stated "Well, we're getting help for things, and we're seeing a

counselor. We just have parenting differences.” Ms. Holley questioned Petitioner

because "when [Petitioner] said she was okay, she didn't sound okay.” Ms. Holley stated

that she told some of their mutual friends about the texts and phone conversations and

asked if anyone else had spoken with Petitioner. She said, "of course, we were all

worried” because Petitioner had moved so far away.

Janet Rich testified that she had known Petitioner since Petitioner was three years

old and had seen her two or three times per week when Petitioner was growing up. She

said,

She was a really sweet, loving, nurturing person from the time she

was just a small child. She was the kid that anytime anybody got hurt, she

had a Band-aid on them, an Ace bandage nurturing them, hugging them,

getting help from parents. You know, running in, somebody needs help.

So she's always been that way. And as she got older she's still that way.

Ms. Rich stated that Petitioner was never a violent, angry, or aggressive child and

that remained true as she got older. She said that, after the victim was born, she saw

Petitioner and the victim "a couple times a month[.]” Ms. Rich stated that the victim

"was a happy little boy” and that Petitioner "loved him dearly. She was very attentive. . .

. [A]t her house, there was -- it was like he was the center of her world.” Ms. Rich

noticed lots of educational toys and tools at Petitioner's home. She recalled,

I was over . . . one time with [the victim], and he was acting a little

naughty. [Petitioner] just took him and talked to him. Sat him down and

said, "This is not good behavior. You can't act like this.” There was no

anger. There was no -- she talked to him like he was growing up. He was

still tiny, but there was no meanness at all.

Ms. Rich testified that Petitioner was even more loving and caring with her second

child, "[i]f that's possible.” Ms. Rich stated that Petitioner's mother asked her to write a

- 31 -

letter to trial counsel as a "character witness.” She said that she was "absolutely” willing

to come from Oregon to Tennessee to testify for the trial and made definite plans for

travel. Ms. Rich explained that Petitioner's mother "called and said[, 'trial counsel] says

he doesn't need you[,']” so Ms. Rich remained in Oregon.

Ms. Rich said that, based on her first impression of Co-Defendant, she did not care

for him. She stated, "But I only met him one time for a few hours.” Ms. Rich said that

Petitioner wanted a "stable, loving family” and saw that opportunity with Co-Defendant.

She agreed that she was not in Clarksville at the time of the murder and did not have

personal knowledge of what occurred. Ms. Rich stated that, when she heard of

Petitioner's arrest, it "absolutely” did not correspond with the behavior she had observed

in Petitioner and said, "[N]o one is going to convince me that in seven weeks she could

change that much.”

On cross-examination, Ms. Rich acknowledged that she had "zero” mental health

expertise. She agreed that, when she met Co-Defendant at a Christmas party, "his

sexualized behavior in the crowd was inappropriate[.]” Ms. Rich recalled that a court in

Oregon removed Petitioner's daughter from her after Petitioner was charged in the death

of the victim.

Petitioner testified that, at the time of trial, she was working on her bachelor's

degree in psychology at Southern Oregon University with three semesters left before

graduation. She stated that she had no training in criminal justice or the legal field.

Petitioner had never been arrested before and had no knowledge or experience regarding

the criminal justice system.

Petitioner said that she had two more children after the victim died. Petitioner

stated that her daughter was taken from her in Oregon because she was charged with the

murder of the victim and not because she had abused her daughter.

Petitioner met trial counsel in February of 2012 when he stopped by the jail to

introduce himself. She said that she met with him briefly when she was released on bond

before she returned to Oregon and met with him "[t]wo or three times” after that for

about an hour each time to review discovery. She did not recall emails with trial counsel

but said that trial counsel sent her "no more than two letters” over the course of a twoyear period. Petitioner recalled speaking with trial counsel on the phone.

Petitioner knew of one instance where trial counsel asked the State for a plea deal

prior to trial, but the State refused to negotiate. She recalled the State asking her to make

"a truthful statement” for them to consider negotiating, but she said that she was already

telling the truth. She said that, while the jury was deliberating, trial counsel

- 32 -

recommended to Petitioner that she seek a plea deal, so she agreed to let him discuss it

with the State. When trial counsel returned, he said, "Nope, he's not budging.”

Petitioner said that the theory of her case was that Co-Defendant murdered the victim

while she was at the commissary.

Petitioner told trial counsel that several people asked to come forward and testify

to her character as a mother. She provided trial counsel with names of people ready and

willing to testify and said that she could get their contact information. Petitioner

explained to trial counsel that she had "some mental health diagnosis” since the victim's

death but did not assert that she was "crazy” or "not in [her] right mind.” Petitioner said

her mental health issues were never mentioned at trial. She said that her care for the

victim was never mentioned at trial but instead that she "had a flat affect, that [she] didn't

care, that [she] was uncompassionate.”

Petitioner stated that, two months after the victim's death and well before she was

charged, she became very depressed and cut herself. She explained, "I just lost my son.

He was my entire world. I had nothing to live for if my son's not there. I didn't have any

other kids. He was my only kid.” Petitioner did not believe she was a suspect at the time

of this suicide attempt. She said that she was on the phone with a friend when she cut

herself, and her friend called 911. Petitioner was involuntarily committed to MTMHI.

She stated that she told trial counsel about this incident.

After Petitioner was released from the hospital, she returned to Oregon and

received the mental health diagnoses of depression, severe PTSD, anxiety disorder, panic

attacks, and dissociative disorder. Petitioner sought therapy and medication. She stated

that she was sure her PTSD developed from "losing [her] son.” She testified that she did

not develop PTSD because she hurt, killed, or neglected her son.

Petitioner stated that she was nineteen when the victim was born and that she was

nervous and excited about the pregnancy. Petitioner agreed that she made the victim's

baby food, that she used flashcards with him, and that she taught him sign language. She

said that she went to quite a few daycare centers before she picked one.

Petitioner testified that she knew Co-Defendant from high school and that she

"started talking to him in August of 2008.” She said that Co-Defendant seemed

interested in the victim and that she believed he cared about them. About two months

later, they were married. She said that she believed it would "be an opportunity for [the

victim] to have a dad.” Four weeks after she arrived in Tennessee, the victim was killed.

Petitioner was proud of Co-Defendant's army service, and she believed it was a

stable career. She asked trial counsel if he was going to get any military records prior to

- 33 -

trial, but she did not see the army records or discuss their contents with anyone until the

day of the post-conviction hearing. She said she had no idea that Co-Defendant had been

recommended for administrative discharge or reassignment. Petitioner stated that, if she

had known that Co-Defendant was violent, "as described in some of these records,” she

"would have gotten as far away from him as [she] could have.”

Petitioner recalled the prosecutor pointing out at trial that she left the groceries in

the car when she arrived home. She explained that she left the groceries and went inside

to get Co-Defendant and the victim because the victim enjoyed helping with the

groceries. She stated that she found the victim "doing this weird breathing pattern.” She

knew something was wrong but did not know what. Petitioner screamed and told CoDefendant to call 911. She wrapped the victim in a blanket to try and keep him warm,

and she sang and rocked the victim. When the ambulance arrived, she rode with the

ambulance to the hospital. Once at the hospital, there were "[a] ton of medical personnel,

like doctors and nurses” surrounding the victim "trying to do an assessment on him[.]”

She stated that she could not approach the victim's bed because of the large number of

medical personnel around him. Petitioner recalled the victim being flown to Vanderbilt

while she rode with a detective to the police station.

Petitioner gave two statements concerning the victim's death, one to police and

one to the prosecutor, and stated that the two statements were substantially similar though

written three years apart. She recalled that, during trial, she was "chastised for writing a

long statement to the police” but stated that she was trying to be "as thorough as [she]

could.” She said that she wanted her statement to help the police and "to show them that

[she] wasn't there. Show them that [her] son was okay, that [she] did not have any part in

this.”

After she was released from the police station, Petitioner's neighbor drove her to

Vanderbilt. When she arrived, the social worker, Ms. Parker, stopped her to speak with

her. She said she was "panic-stricken” and "shocked” and that all she wanted was to see

her son. However, Ms. Parker asked her a number of detailed questions before allowing

her to see the victim.

Petitioner did not recall meeting with Co-Defendant's first trial counsel, Debra

Lindsey, but agreed that, if she came across as "flat and uncaring and snide,” that was not

her intention. She understood why people might have viewed her that way because she

"was just in so much shock. . . . I was just trying to figure things out.”

Petitioner recalled one incident in Oregon after the wedding when Co-Defendant

was trying to potty-train the victim. Co-Defendant spanked the victim "hard,” so they

had a conversation. She stated that she did not see "anything that showed he didn't want

- 34 -

to be a father.” Petitioner explained, "I mean, he was struggling, at times. But it wasn't

just flat out he didn't want to be a father. Just there were times that he struggled is how I

viewed it. He was struggling to figure out how to be a father.” She did not have any

concerns that Co-Defendant would "do anything like this to” the victim else she would

not "have let [Co-Defendant] near either one of us.”

On cross-examination, Petitioner agreed that she returned to Co-Defendant after

the Oregon spanking incident and explained that Co-Defendant "said it would never

happen again.” Petitioner stated that it did happen again after they moved to Tennessee.

She agreed that, if she had asked for help to get away from Co-Defendant, Ms. Holley

would have "tried to find a way” to help. Petitioner stated that, had she known that CoDefendant was having anger issues at work, she would have sought help to "get someone

involved.” She said it shocked her to learn that Co-Defendant was discharged from the

Army for "serious criminal activity.”

The State read a portion of Petitioner's MTMHI medical records: "[Petitioner]

didn't tell her or anyone she wanted to bleed to death. She didn't cut deep. She didn't

need stitches. She said she cut her wrist to take away her pain and relieve her emotions,

but not to kill herself. It was not a suicide attempt.” Petitioner denied that this

"sound[ed] like it may have been a fake suicide attempt[.]”

Petitioner said that she had concern for Co-Defendant "[i]n the very beginning”

because she "didn't know what happened.” She said, "All I kn[e]w is I had lost my son,

and now [Co-Defendant] was in jail.” She agreed that, at first, she was in denial that she

had "married a bum.” Petitioner said that her statement to trial counsel was the same as

her statement at the post-conviction hearing.

James Simmons testified that he had been a practicing attorney since 1982 with a

ninety-five percent criminal law practice. He stated that he was certified under Rule 13

"as capable and qualified to handle capital cases,” which required specialized training

every two years and being lead counsel in capital cases. Mr. Simmons said that he

regularly testified regarding the American Bar Association ("ABA”) standards and the

performance of counsel "to give an opinion as to whether the trial counsel's performance

was in compliance with the ABA standards, which are our guidance, to the level of

performance which is expected of criminal defense counsel.” The trial court qualified

Mr. Simmons as an expert on performance of criminal defense representation.

Mr. Simmons reviewed the trial transcripts, pretrial motions, medical records and

reports, army records, photographs, psychological reports, and the ABA standards. He

noted that trial counsel told the trial court that he filed a pretrial motion to sever "at the

insistence of his client,” which indicated to the trial court that trial counsel "didn't

- 35 -

believe the motion had any merit,” and that trial counsel failed to present any proof to

support his motion and failed to renew the motion later after evidence was presented.

Mr. Simmons said that trial counsel's choice to file a motion to sever just two weeks after

an indictment showed that it was filed prior to any research or investigation. He said that

the brevity of the motion was "an indication that [trial] counsel didn't have any

confidence that the motion had merit. It cited no facts other than a conclusion of

spillover, which is not prejudice, necessarily, and cited no case law.” Mr. Simmons

normally expected a motion to sever in a homicide case to cite to case law and have a

memorandum in support of the motion stating facts. He also expected trial counsel to

present witnesses in support of a motion to sever. Mr. Simmons noted that the motion to

sever was filed more than a year before the hearing on the motion and yet, trial counsel

had not investigated the case or presented any facts or law to support his motion during

that time. He said that trial counsel "absolutely” should have renewed the motion to

sever following the opening statement by Co-Defendant's counsel showing "that, in fact,

the conduct and comments and emotional state of [Petitioner] was going to be equated to

guilt. And that created absolute prejudice” for Petitioner's "ability [] to receive a fair trial

in a joint setting.” He said that, in this court's opinion on direct appeal, the panel "clearly

indicated” that "one of the main issues in the case was [Petitioner's] lack of emotion” as

evidence of her guilt.

Moreover, the introduction of the redacted statement from Co-Defendant -- that no

one else was present and that Co-Defendant did not hurt the victim -- created "the only

inference that it was [Petitioner] who did it. And [s]he had no ability at that point to

cross-examine . . . the statement.” Mr. Simmons stated that these facts "absolutely”

created a Bruton issue.

Mr. Simmons testified that he could not perceive any strategical reason trial

counsel did not pursue the severance motion in this case. Mr. Simmons stated that, had

trial counsel investigated properly, trial counsel would have seen the crime scene

photographs showed Co-Defendant's prescription bottles for medicines treating

"psychopathic-type conditions.” These bottles "would have led to the duty to investigate

the facts of the case and any conditions [Co-Defendant] had” showing his "inability to

control his emotions or actions.” He said that "those medical bottles in the photographs

of the crime scene, which were produced in discovery, should have been a huge red flag

to further investigate this situation.” Mr. Simmons asserted that a proper investigation of

these medications should have led trial counsel to obtain Co-Defendant's army records,

which an expert could have analyzed. Thus, further pretrial motions were warranted but

"would have been predicated under a proper investigation.”

Mr. Simmons noted that in Co-Defendant's military records was a transcription of

Detective Alan Charvis's sworn testimony from Co-Defendant's separation hearing when

- 36 -

he was discharged from the Army. Mr. Simmons read Detective Charvis's prior sworn

testimony. This prior sworn testimony included:

[Co-Defendant] had access to the child all morning. [Petitioner] had

left the house at approximately 10[:]00 to go shopping. She said she

returned home around 12[:]30. The call came in to us around 12[:]45.

. . . .

[Co-Defendant] admittedly was the only one who had access to the

child at the time the injuries could have occurred. [Petitioner] said the child

was fine when she left the house. There were some indications of some old

injuries and past abuse that was not reported. We looked at [Petitioner] as a

suspect also. We could not pinpoint [Petitioner] as a suspect.

Based on the time frame of the incident there would not be enough

time for [Petitioner] to leave the house to go to Fort Campbell, get home,

abuse the child, and then call 911. We looked at the amount of bruising

and the amount of injuries that were done to the child. We also went off of

the information [Co-Defendant] told us.

. . . .

[Co-Defendant] said that the child was okay when [Petitioner] left

the house. [Co-Defendant] was the only person in the house during that

time period.

. . . .

I contacted Grants Pass, Oregon and they had no reports on child

abuse. I have witnesses that saw the child when they moved into the

apartment. The witnesses said the child had bruising on the face and he ran

into a truck door or something.

Mr. Simmons stated that this testimony would have been useful for trial counsel to

cross-examine Detective Charvis at trial and "certainly could have” created reasonable

doubt as to Petitioner's guilt. Mr. Simmons said, "I think any competent lawyer would

have used a prior sworn statement of the lead detective at trial if it was beneficial in

cross-examination.” He stated that, based on trial counsel's failures to investigate, the

cross-examination of Detective Charvis at trial "was clearly ineffective.”

- 37 -

Other information was also found in the military records. Mr. Simmons testified

that Co-Defendant's "suicidal and homicidal ideations” listed in the records "would

clearly indicate there are mental health issues regarding his stability, anger management

issues, PTSD issues . . . that needed to be further investigated and followed up on.”

Mr. Simmons reviewed Petitioner's medical records from MTMHI. He said that

criminal defense attorneys "pay attention” to mental health issues in a case because these

issues "directly affect behavior and they're present in almost all cases, especially in

homicide cases.” Mr. Simmons stated that investigating mental health issues was

beneficial both for trial and for pretrial negotiations. In this case, Mr. Simmons noted

that Petitioner's medical records "could have been a way to explain her emotional state,

her affect, [and] her reaction” to contradict the assertion that these things were not

"consistent with a grieving mother.” Mr. Simmons disagreed with trial counsel that

Petitioner's mental health issues were not relevant:

I think it is absolutely relevant because apparently the theory of [CoDefendant] was that because of [Petitioner]'s lack of emotional reaction,

the inappropriate comments she supposedly made, and some inappropriate

conduct -- for example, she was using the -- texting when she was being

interviewed by a social worker -- all of that should have been investigated

prior to trial.

. . . .

Yes, it should have been used -- and could have been used to negate

what was their strongest argument as to guilt. Which was what Judge

Wedemeyer said, which was the lack of emotion equals guilt was their

theory.

Mr. Simmons agreed that Petitioner's records from MTMHI showed that she was

involuntarily committed for depression and an attempted suicide following the death of

her son. In the discharge notes, Mr. Simmons noted that the doctors found that "she cut

her wrist to take away her pain and relieve her emotions, but not to kill herself.” Mr.

Simmons said that, if he had received these documents as a defense attorney, he would

have deduced that "there are clearly mental health issues associated with a traumatic

event that needed further investigation[,]” including Petitioner's subsequent therapy or

grief counselors upon her return to Oregon. Based upon Petitioner's mental health

records, Mr. Simmons stated that trial counsel should have filed a motion in limine to

exclude testimony regarding Petitioner's demeanor because trial counsel should have

"determined that it meant nothing as in guilt or innocence. It's just her way of reacting to

this event.” Mr. Simmons stated that trial counsel also should have called Ms. Converse

- 38 -

to testify regarding her experience as a nurse dealing with parents whose children had

died.

Mr. Simmons recalled trial counsel testifying that Ms. Phillips's defense theory

was "out of the blue” and said, "[I]n the absence of doing a thorough investigation, [trial

counsel] very well could have been surprised. But the evidence was there to be looked at.

It was waiting to be found, either by interview or by documentation.” He stated, "[E]ven

if the theory is ['she] w[as]n't there; [she's] got an alibi -- or whatever -- that does not

relieve the obligation to investigate the case and review of the documents.”

Mr. Simmons noted that the photographs showed a high chair with partially eaten

food, which corroborated Petitioner's statement that she left after feeding the victim. He

explained:

I think if you take that evidence, and you compare that with the

testimony and the evidence of the pathologist, who testified that these

injuries -- the severity of these injuries would have been manifested

immediately, then I think it would have been impossible for these injuries

to have occurred prior to her leaving and that the child still be eating.

That's just not reconcilable when these injuries occurred and then having

breakfast.

Mr. Simmons stated that trial counsel should have filed a motion in limine to

exclude the photographs of the victim and to dismiss the rape charge. He said, "I'd

reasonably expect [trial counsel] to file any pretrial motion to exclude harmful evidence.”

Mr. Simmons recalled Dr. Phillips testifying for the State at trial, saying that

Petitioner "was a good mother, that she was very caring about her child that she -- she

kept all the appointments, that she called frequently when there [were] any issues.” He

stated that Dr. Phillips had "absolutely . . . no indication of any type of abuse.” Mr.

Simmons stated that trial counsel should have interviewed Dr. Phillips prior to trial and

cross-examined Dr. Phillips at trial. Mr. Simmons counted ten State witnesses that trial

counsel did not cross-examine, which indicated that trial counsel "had not interviewed

the witness[es] or he did not review the records.”

Mr. Simmons agreed that trial counsel said in his opening statement that Petitioner

loved the victim and that trial counsel admitted at the post-conviction hearing that trial

counsel introduced no evidence regarding Petitioner's love for her child. Mr. Simmons

stated that a defense attorney must be "careful” what he promises in an opening statement

because "[i]f you promise it, you better follow through with it[,]” else an attorney will

- 39 -

"lose credibility with the jury.” Mr. Simmons explained that he would have called the

numerous witnesses that came forward to testify as to how she treated her child:

[I]t was all relevant to present a theory of defense. The right to

present a defense was that -- I think the testimony today was she'd only

been in Tennessee some four weeks, that she was a loving mother, and that

there was no abuse.

In fact, today there's indications that she was -- very much loved the

child and would have been substantive proof that she did not inflict the

injuries.

And also I think it would have been -- some of the proof today

would have gone to rebut the inference that her lack of affect was an

indication of guilt.

Debra Ann Wall Lindsey testified that she had been a practicing criminal law

attorney for thirty-five years. She testified that she represented Co-Defendant prior to

Ms. Phillips. Petitioner told Ms. Lindsey that she was in the home on the day of the

murder and never told Ms. Lindsey that Co-Defendant had abused the victim. She said,

"I remember that she was concerned that she had some evidence that the police had

overlooked that she thought would exonerate her husband. And she brought it to my

office.” Ms. Lindsey withdrew from representing Co-Defendant just before trial. Ms.

Lindsey stated that Petitioner never told her anything contradictory from or in more detail

than the statement she gave police. Ms. Lindsey said that, the first few times they spoke

about the case, Petitioner referred to the victim as "that child” rather than using his name.

Ms. Lindsey testified that she was also a registered nurse who worked with abused

children for ten years, so that language raised "red flags” for her.

On cross-examination, Ms. Lindsey explained that she represented Co-Defendant

for several years. She said that she filed several pretrial motions, which she usually did

in murder cases. Ms. Lindsey explained that she filed a pretrial motion to exclude

photographs of the victim because "they were very inflammatory, and a lot of them were

duplicative.” She agreed that she filed that motion to exclude to have a fair trial for her

client. She recalled filing a motion in limine to exclude Petitioner's testimony that CoDefendant was "a sexual deviant.” Ms. Lindsey said that she filed that motion based

upon conversations with Petitioner's trial counsel.

Ms. Lindsey agreed that she investigated the case and secured two expert

witnesses for Co-Defendant. Ms. Lindsey explained that she withdrew from representing

Co-Defendant because she learned that the State's medical witness from Vanderbilt "was

- 40 -

going to change his testimony regarding the timing of that injury” and that the timing was

"very critical” in this case. She explained:

There was a physician that we had spoken to. And it was one that

[the prosecutor] and I were present for the conversation. And as an RN,

when a doctor speaks, I listen. I was an RN in the '70s before we had

computers. I take notes down. I know what doctors say. [The doctor] had

given us an opinion regarding the time that he believed the child was

injured. I don't remember what it is now, but I just remember that I had

taken detailed notes. I was notified at some point that he was going to

change that prior to trial. And then the only person to impeach him was

[the prosecutor] or myself. [This] created the conflict there because I felt

like I would need to be a witness.

Ms. Lindsey did not recall trial counsel ever asking her about what the physician

had told her and never called Ms. Lindsey as a witness. She stated that she spoke to

"about ten” of the doctors and some nurses at Vanderbilt. She agreed that it was

important for her to speak with "[e]veryone that [she] could.” Ms. Lindsey met with CoDefendant about once per month. She said that, during these visits, she became

concerned about Co-Defendant's mental health and that she would "always” explore

mental health in a case like this. Ms. Lindsey stated that she met with Petitioner several

times and had in-depth interviews with her. She agreed that, for first-degree murder

cases of children, which are "the worst of the worst[,]” the steps she took were the

"standard for professionalism in criminal defense practice.” The following exchange

occurred:

Q. You certainly would not abandon investigating potential witnesses in a

case like this, would you?

A. No, sir.

Q. You certainly would not meet with your client only one time, would

you?

A. No, sir.

Q. You certainly wouldn't abandon filing pretrial motions?

A. No, sir.

- 41 -

Q. You certainly wouldn't abandon a severance motion if you thought it

was a good one in a case like this?

A. No, sir, I would not.

On redirect examination, Ms. Lindsey explained that she did not know if CoDefendant's trial counsel used the expert witnesses she had secured. She said that CoDefendant was evaluated and found competent to go to trial. She agreed that, at the

conclusion of proof, she would abandon a motion to sever if she felt like it was not

sustainable. Ms. Lindsey stated that she "traced down every piece of medical proof [she]

could get.” She felt that a lot of the medical proof was contradictory: "You have

different layer, different departments. You have your interns, your residents, your

attendings. Everybody has a different opinion. A lot of it was conflicting.” She agreed

that there were fewer discrepancies among the attending physicians, who had "the final

call” on a case. Ms. Lindsey stated that trial counsel was not involved "in any way,

shape, or form” at the time she was investigating at Vanderbilt.

Robert Joseph Nash testified that he was the assistant district attorney general who

prosecuted Petitioner at trial. He stated that, in the two years and eight months between

the time Co-Defendant was indicted and the time Petitioner was indicted, other assistant

district attorneys who "knew the facts of the case questioned [him] regarding the status of

[Petitioner].” He explained,

I just want to say, [it was] not only those individuals in the office, as

far as district attorneys. But as I started to interview witnesses, those at the

apartment complex, those at the medical facility -- I guess Gateway -- the

nurses and the doctors, other people from Vanderbilt that treated [the

victim] -- I mean, they all asked me ["]what about the mother,[”] was pretty

much the consensus.

General Nash stated that, when Detective Charvis testified at Co-Defendant's

military separation hearing, "he hadn't talked to a doctor other than over the phone. . . .

He had no records. I had retrieved them.” General Nash said that he briefly spoke with

Petitioner before she returned to Oregon. Later, he traveled to Oregon because Petitioner

was pregnant and could not travel. When General Nash was in Oregon, he spoke with

Dr. Phillips and Petitioner, as well as others in the community.

When General Nash interviewed Petitioner in Oregon, he "thought she was a

witness. She was the mother of [the victim]. She was not taken to the grand jury. She

was not arrested.” General Nash testified that the statement Petitioner gave him during

the interview in Oregon was not substantially different from her testimony at the post-

- 42 -

conviction hearing. He said it was "somewhat interesting” that both Co-Defendant and

Petitioner spanked the victim on the morning of his death but that the only abuse

mentioned while General Nash was in Oregon was the "incident that happened in

Oregon” before they came to Tennessee. General Nash said that Petitioner was "very

reserved” and "wasn't very forthcoming.” Petitioner's mother told General Nash, "Don't

worry. She's just afraid. . . . She's afraid of being arrested” because Detective Charvis

said he "ought to arrest [her], too.” General Nash said that, during his trip to Oregon, he

did not learn anything from Petitioner that he did not already know.

Then General Nash met with Dr. Phillips and went over the medical records. He

said that he brought Dr. Phillips to testify at trial "[b]ecause he had to give the whole

story. I wanted to show how [the victim] was being treated and looked after prior to

coming here.” General Nash said that the medical proof was "irrefutable” and that it

showed that the victim was beaten to death. General Nash testified that Dr. Wushensky

said the brain would take "six to eight hours” to get as swollen as it did by the time of the

brain scan. General Nash stated that he believed that put the timing of the injury at 8:00

or 9:00 that morning.

General Nash stated that trial counsel attempted "many times” to enter into plea

negotiations and that he "was persistent[.]” He said that he had "conversations with

[Petitioner]” and that she would "not admit that [Co-Defendant] was causing any

injuries” to the victim. He said, "So the medical proof dictated to me there was

something else that I'm missing. There's only two people I can get that from. And one

was supposed to be the mother of the child who was beaten.” General Nash did not

believe that the statements the defendants provided were credible because they did not

provide for the damage done to the victim prior to the fatal injuries. General Nash stated

that he explained the medical records to trial counsel and that what he showed trial

counsel was the evidence presented at trial. General Nash noted that trial counsel

admitted evidence from the Vanderbilt medical records that Petitioner was "grieving

appropriately.”

General Nash testified that trial counsel provided him with a recording of a

"hypnosis session” Petitioner went through. He stated that it was not admissible in court.

He said that he had known Petitioner for three years prior to her becoming a defendant in

this case and that Petitioner had never told him of her suicide attempt or mental health

issues. General Nash said that, even if he had known of Petitioner's mental health issues,

none of it would have affected his plea negotiations with trial counsel.

Regarding Co-Defendant's statement to police, General Nash stated that the parts

referring to Petitioner were redacted. He said,

- 43 -

[A]nother thing you've got to remember about the statements. Initially

people were under the impression, initially, that this happened during the

grocery store incident. [Dr.] Wushensky[']s testimony now brought the

time frame before she ever went, period. Which has been -- not been

refuted today. So . . . they were both there early in the morning, by their

own statements. All the rest of it was made up.

On cross-examination, General Nash agreed that Dr. Abramo testified as to some

"small scattered bruises noted in different phases of healing”

2 on the victim but did not

recall if any other medical personnel testified to "old bruising.” General Nash agreed that

the autopsy was performed four days after the victim's death and that Detective Charvis

testified before the military tribunal fourteen months later. General Nash agreed that, if

he had had the transcript of the military proceeding, he would have considered it

important to turn over during discovery.

The State asked General Nash about Ms. Lindsey's testimony that she withdrew as

Co-Defendant's counsel because Dr. Wushensky changed his medical opinion. However,

General Nash stated that Dr. Wushensky denied changing his opinion.

During a deposition, Catherine Zern testified that she had a Master's degree in

social work and had been a licensed clinical social worker in Oregon since 1996. She

said that Petitioner was her patient in 2009, after the victim's death when Petitioner

returned to Oregon. Ms. Zern noted that Petitioner was

triggered psychologically and physically by seeing men and children,

having intrusive thoughts, nightmares, a sense of foreshortened future,

detachment and numbing, being unable at times to cry, as well as hyperarousal exhibited in early morning awakenings, decreased appetite,

exaggerated startle response, intense anger, particularly at herself, extreme -

- and extreme difficulty concentrating. Her mood was depressed, and

numbing would alternate with crying. [I]t wasn't clear if she was having

panic attacks. She was having episodes that suggested panic attacks.

[S]he was on Trazadone and Celexa, and so I would have wanted her

followed up with a psychiatri[st] and medications.



2 At trial, Dr. Abramo stated, "[T]here were multiple old bruises of varying degrees. It's hard to

gauge now at actually when those bruises truly occurred but, to me, in my medical opinion they look like

they were greater than a day.”

- 44 -

Ms. Zern explained that "hyper-arousal” manifested in difficulty sleeping,

agitation, anxiety, and "fight-flight-freeze.” She stated that Petitioner was "exhibiting

complicated bereavement” which was "in the context of a traumatic event.” Ms. Zern

found that Petitioner had PTSD "related to the death of her son.” Petitioner scored on the

"high end of moderate” for anxiety and on the "high end of severe” for depression. Ms.

Zern concluded that Petitioner had "some suicidal ideation.”

Because of her "presenting symptoms,” which were "interfering with her

functioning,” Ms. Zern sent Petitioner to see a psychiatrist, Dr. Kathleen Hughes-Kuda.

Dr. Hughes-Kuda diagnosed Petitioner with severe PTSD and dependent personality

disorder. Ms. Zern stated that Dr. Hughes-Kuda's report expressed perceptions that were

"in line” with her own. Dr. Hughes-Kuda had recommended follow-up treatment with

Ms. Zern as well as prescribing medication for Petitioner. Ms. Zern treated Petitioner for

twenty-eight months, and Ms. Zern's observations over that time supported Dr. HughesKuda's initial assessments.

Ms. Zern reviewed the records from MTMHI and noted that Petitioner was rated

as suicidal upon admission. She also noted that Petitioner's discharge paperwork stated

that "she had no intentions of killing herself.” In explaining this discrepancy, Ms. Zern

stated:

Well, it's possible that she felt better. I mean, there are a number of

possibilities. One would be that oftentimes, people say I'm not -- I'm okay

now, let me go, I want to get out of here. So, you know, so they will tend

to minimize either their current suicidality or what they were admitted for.

It's also possible that she had -- that she was feeling better, you know, she

was less suicidal when she left.

Ms. Zern testified that Petitioner was not given to threatening suicide "to gain

attention,” and that she "did have some suicidality, but in treatment, she was able to

manage that with supportive treatment.”

Ms. Zern stated that Petitioner was not very good at explaining a story because she

was traumatized and experiences the memory in "images.” She explained,

[T]raumatic memory is stored often implicitly, and it's stored different than

other memories, and so it tends to come out when it's triggered by

something rather than being able to sort of organize the story with a

beginning, middle, and end, and that's part of what treatment is designed to

do, is help people . . . manage.

- 45 -

Ms. Zern explained that Petitioner appeared to have a "flat affect” because she

went into "hypo-arousal, where she would sort of numb out, or she would . . . dissociate.

And so when she was numb, she often looked flat. . . . And when [Petitioner] would

become, like, over-anxious, she would just kind of shut down into that flat place.” Ms.

Zern said that, in her work with trauma survivors "who are in an acute phase, there's a bit

of unreality and shock, and you can . . . hardly tell that anything has happened.” She

stated that she observed this dissociative state several times over the course of

Petitioner's twenty-eight months of treatment.

Petitioner had another child while she was in therapy with Ms. Zern, but Ms. Zern

had no concerns about that child's safety with Petitioner. Ms. Zern left her place of

employment, so she referred Petitioner to Barbara Jones, a licensed marriage and family

therapist. Ms. Zern said that Ms. Jones "had done a lot of work with trauma and

domestic violence,” and Ms. Zern also concluded that Petitioner suffered from PTSD.

Ms. Zern stated that she spoke with General Nash over the phone in August of

2011 and shared her observations of Petitioner. She said that she and Ms. Jones were

both surprised that they never received a call from trial counsel. Ms. Zern stated that she

would have been willing and available to testify at trial had she been called.

On cross-examination, Ms. Zern stated that she was not testifying as to Petitioner's

mental state at the time of the crime or whether she was competent to stand trial. She

said that Petitioner was not "insane” when they met. She said that Petitioner's memory

of the day the victim died was in "a lot of different pieces” and that she did not know

"that the pieces were put together.” Ms. Zern explained that Petitioner "didn't really

have a complete narrative of the day” when she was in therapy but stated that she "didn't

ask her for one either.” Ms. Zern testified that it was her "professional opinion” that

Petitioner had been the victim of domestic violence of Co-Defendant. She said that her

conclusion of domestic violence was "based on [Petitioner's] presentation, her symptoms.

. . . Her presentation and . . . the way her -- the information came out was congruent with

what she was reporting.” Ms. Zern agreed that Petitioner did not disclose beatings,

threats of beatings, or confining her against her will. She explained, "[O]ften in domestic

violence, you see people threatening to kill themselves as a way of manipulating their

partner, and that kind of behavior I would categorize as terrorizing.” Ms. Zern stated that

she could not conclude for certainty what caused the PTSD and dissociative states

because she was not present during the commission of the offenses.

On redirect examination, Ms. Zern stated that Petitioner never told her that

Petitioner observed Co-Defendant beating the victim and inflicting the fatal injuries. She

said that Petitioner's memory from the weeks leading up to the victim's death, as well as

the day he died, were "fragmented.” She stated that she told General Nash that

- 46 -

Petitioner's memories were "fragmented” and that it was an "involuntary process.” Ms.

Zern said, "[I]t's art and science to be able to get a coherent narrative from a trauma

survivor.”

Order Denying Post-Conviction Relief

The post-conviction court denied the Petition in a written order.3

Regarding

Petitioner's claim that trial counsel was deficient for abandoning the motion to sever, the

court stated that trial counsel cannot be deficient "simply based on [the] failure to seek a

severance of defendants.” Citing State v. Harbison, 539 S.W.3d 149, 161 (Tenn. 2018),

it stated that "[h]ostility between defendants, attempt to cast blame on each other, fingerpointing, and tattling do not necessarily require a severance.”

Regarding trial counsel's failure to investigate Co-Defendant's military records,

the post-conviction court stated that the military records indicated that Co-Defendant was

discharged because of the charges in the instant case. Therefore, it concluded,

"Assuming for the sake of argument that trial counsel should have obtained a copy of

[C]o-[D]efendant's service record[,] there has not been sufficient proof that the absence

of such records served to prejudiced the defense of the Petitioner, as required by the

second prong of Strickland.”

The post-conviction court stated that the evidence at the post-conviction hearing

did not support the contention that trial counsel was deficient for failing to investigate

Petitioner's unemotional state. The court said,

Testimony of Petitioner's conduct in providing care for her child while

living in Oregon, prior to her moving to Tennessee and prior to her

marriage to [C]o-defendant . . . seems unlikely to be relevant to the issue of

her appearing to display sufficient emotion. There was no evidence that the

Petitioner informed counsel of an emotional or psychological condition

which would have given rise to the appearance of lacking emotion.

Moreover, the post-conviction court stated that "[t]he reasonableness of the

actions of an attorney may be determined or substantially influenced by the client's own

statements or actions and what investigation decisions are reasonable depend on such

information obtained from the client[,]” citing Nesbit v. State, 452 S.W.3d 779, 796

(Tenn. 2014).



3 Because the post-conviction court addressed several issues in its order that Petitioner did not

raise on appeal, we will limit our discussion to the issues raised on appeal.

- 47 -

The post-conviction court concluded that, due to Petitioner's residence in Oregon,

trial counsel was not deficient for holding "more telephonic meetings” rather than "face

to face” and that trial counsel recalled meeting with Petitioner at least three times. It

stated that Petitioner did not establish by clear and convincing evidence that trial counsel

did not sufficiently consult with Petitioner.

The post-conviction court stated that there was no proof presented that refuted the

medical proof at trial regarding the timing of the victim's death or the alleged sexual

assault. Regarding Petitioner's claim that trial counsel failed to present a defense, the

post-conviction court found that

Trial counsel cross[-]examined witnesses, presented medical records from

Vanderbilt Medical Center which stated, [P]etitioner was "grieving

appropriately during this time evidenced by her crying, holding the

[victim's] hand and writing the [victim] a good bye letter.” The records

also reflected [P]etitioner requested and met with the Chaplain as well.

The post-conviction court found that, removing the judgment of hindsight, trial

counsel's defense strategy was reasonable. Regarding Petitioner's "flat affect,” the postconviction court stated:

The testimony of [trial] counsel indicated that he was aware that Petitioner

could be perceived as being unemotional and that this was discussed with

her. Counsel introduced medical records which reflected the response of

the Petitioner as "grieving appropriately.” Petitioner has presented no law

supporting a basis to exclude evidence of Petitioner's demeanor or

argument which would support its exclusion. As to the failure to retain an

expert to comment on trauma victims['] range of emotions, Petitioner has

presented no admissible proof that such an opinion would be expressed as

to the Petitioner. Assuming that the testimony of Catherine Zern would

have been admitted for that purpose[,] there has been no showing that the

absence of such testimony establishes a prejudice to the defense of the

Petitioner, so as to meet the second prong of Strickland.

This court granted Petitioner's motion to late-file a notice of appeal.

Analysis

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

- 48 -

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial

court's findings of fact under a de novo standard with a presumption that those findings

are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.

R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court's

conclusions of law and application of the law to factual findings are reviewed de novo

with no presumption of correctness. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.

2015).

When reviewing the trial court's findings of fact, this court does not reweigh the

evidence or "substitute [its] own inferences for those drawn by the trial court.” Fields, 40

S.W.3d at 456. Additionally, "questions concerning the credibility of the witnesses, the

weight and value to be given their testimony, and the factual issues raised by the evidence

are to be resolved by the [post-conviction court].” Id. (citing Henley, 960 S.W.2d at

579); see also Kendrick, 454 S.W.3d at 457.

I. Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove: (1) that counsel's performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee

cases). Both factors must be proven in order for the court to grant post-conviction relief.

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of

counsel's performance "requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S.

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

"[T]his court's deference to counsel's tactical decisions will depend upon counsel's

adequate investigation of defense options.” Jeffrey Whitaker v. State, No. E2001-02399-

CCA-R3-PC, 2003 WL 21276125, at *3 (Tenn. Crim. App. June 3, 2003) (citing Burger

v. Kemp, 483 U.S. 776, 794 (1987)).

- 49 -

As to the first prong of the Strickland analysis, "counsel's performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate "that counsel's acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel's performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, the petitioner "must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

A. Pretrial Motions

"[E]ffective representation includes a duty for attorneys to 'be prepared, where

appropriate' to make pre-trial motions.” Brian Christopher Dunn v. State, No. M2017-

00271-CCA-R3-PC, 2017 WL 5565632, at *8 (Tenn. Crim. App. Nov. 20, 2017)

(quoting Johnson v. United States, 604 F.3d 1016, 1019 (7th Cir. 2010)), perm. app.

denied (Tenn. Feb. 14, 2018). To prove prejudice based on trial counsel's failure to file a

pretrial motion, a petitioner must show that (1) the pretrial motion would have been

granted, and (2) that there was a reasonable probability that the outcome of the

proceeding would have been different had trial counsel filed the motion. See Brian

Cameron Frelix v. State, No. M2019-01070-CCA-R3-PC, 2020 WL 5888144, at *10

(Tenn. Crim. App. Oct. 5, 2020) (citing Vaughn v. State, 202 S.W.3d 106, 120 (Tenn.

2006), abrogated on other grounds by Brown v. Jordan, 563 S.W.3d 196, 202 (Tenn.

2018)), perm. app. filed (Tenn. Dec. 4, 2020); Joshua Iceman v. State, No. M2018-

02202-CCA-R3-PC, 2020 WL 58312, at *5 (Tenn. Crim. App. Jan. 6, 2020); Larry

Mitchell v. State, No. W2004-00981-CCA-R3-PC, 2005 WL 957092, at *2 (Tenn. Crim.

App. Apr. 25, 2005), perm. app. denied (Tenn. Aug. 22, 2005).

1. Motion to Sever

Petitioner argues that Co-Defendant's statement to police that he did not inflict the

victim's fatal injuries inevitably pointed to Petitioner as the one responsible. Petitioner

claims that trial counsel "failed to understand the legal principles governing Bruton [v.

United States, 391 U.S. 123 (1968)], and thus failed to assert the motion to sever based

- 50 -

on Bruton. She also contends that trial counsel was deficient for failing to renew the

motion to sever based on antagonistic defenses after hearing Co-Defendant's counsel's

opening statement argument that Petitioner's "flat affect” was evidence of her guilt.

Petitioner argues, "The nature of the antagonism was such as to make [Co-Defendant] the

accuser of [Petitioner], so she had to defend not only against the State's evidence and

arguments, but also against the evidence and arguments offered by [Co-Defendant].”

The State responds that Petitioner cannot show that trial counsel was deficient in

abandoning the motion to sever because there was neither a Bruton issue nor such

antagonistic defenses that severance was required. The State argues that Bruton does not

apply because Co-Defendant's statement to police did not directly implicate Petitioner.

Moreover, the State contends that Petitioner failed to show prejudice because the trial

court would have denied the motion to sever.

Tennessee Rule of Criminal Procedure 8(c)(1) provides that "[a]n indictment,

presentment, or information may charge two or more defendants . . . if each of the

defendants is charged with accountability for each offense included[.]” Tenn. R. Crim. P.

8(c)(1). "While 'mutually antagonistic' defenses may mandate severance in some

circumstances, they are not prejudicial per se.” State v. Ensley, 956 S.W.2d 502, 509

(Tenn. Crim. App. 1996) (quoting State v. Russell David Farmer, et al., No. 03C01-

9206-CR-00196, 1993 WL 247907 (Tenn. Crim. App. July 8, 1993)). "The defendant

must go further and establish that a joint trial will result in 'compelling prejudice,'

against which the trial court cannot protect, so that a fair trial cannot be had.” Russell

David Farmer, et al., 1993 WL 247907, at *4 (quoting United States v. Horton, 705 F.2d

1414, 1417 (5th Cir. 1983)).

In State v. Harbison, our supreme court noted that:

[t]here is no bright-line rule as to when a trial court should grant a

defendant's request for severance. Courts consider the following factors,

none of which are dispositive, when deciding whether to grant a severance:

the number of defendants named in the indictment, the number of counts

charged in the indictment, the complexity of the indictment, the estimated

length of the trial, the disparities in the evidence offered against the

defendants, the disparities in the degrees of involvement by the defendants

in the charged offenses, possible conflicts between the defendants and their

strategies, and prejudice from evidence admitted against a co-defendant(s)

which is inadmissible or excluded as to another defendant. See United

States v. Gallo, 668 F. Supp. 736, 749 (E.D.N.Y. 1987).

539 S.W.3d 149, 159 (Tenn. 2018).

- 51 -

Here, Petitioner argues that, because Co-Defendant's counsel sought to "cast

blame” on Petitioner for the victim's murder and because Co-Defendant's statement to

police was admitted, severance was necessary for a fair trial. She contends that CoDefendant's statement violated her rights under Bruton and that trial counsel was

ineffective for failing to seek the motion to sever. Thus, the question before us is whether

Petitioner has shown by clear and convincing evidence (1) that a motion to sever would

have resulted in severance, and, if so, (2) that there is a reasonable probability that the

result of the proceedings would have been different had the defendants been severed. See

Larry Mitchell, 2005 WL 957092, at *2.

In Bruton v. United States, 391 U.S. 123, 136-137 (1968), the United States

Supreme Court held that, "where two defendants are jointly tried, admission of one

defendant's pre-trial statement implicating the co-defendant violates the co-defendant's

Sixth Amendment right to confront and cross-examine witnesses against him.” State v.

Jack Price, No. E2011-01050-CCA-R3-CD, 2013 WL 5371679, at *13 (Tenn. Crim.

App. Sept. 26, 2013) (citing Bruton v. United States, 391 U.S. 123, 136-137 (1968)). The

Tennessee Supreme Court has applied this holding to Tennessee case law. In State v.

Elliott, the supreme court stated, "[W]here[] the confession of one non-testifying

codefendant contradicts, repudiates, or adds to material statements in the confession of

the other non-testifying codefendant, so as to expose the latter to an increased risk of

conviction or to an increase in the degree of the offense with correspondingly greater

punishment, the latter codefendant is entitled to test the veracity of the statements in the

confession of his codefendant.” 524 S.W.2d 473, 478 (Tenn. 1975). Further, this court

adopted the extension of Bruton from the Sixth Circuit Court of Appeals, "holding that

the prohibition applies not only to a non-testifying codefendant's confessions, but also to

statements made by the codefendant that implicate the defendant.” State v. Ruby

Breeden, No. E2004-01512-CCA-R3-CD, 2005 WL 3199280, at *8 (Tenn. Crim. App.

Nov. 30, 2005) (quoting Pettyjohn v. Newberry, 225 F.3d 659 (6th Cir. 2000)) (emphasis

in original).

"Tennessee Rule of Criminal Procedure 14(c)(1) addresses a Bruton problem.”

State v. Edward Coleman, No. W2001-01021-CCA-R3-CD, 2002 WL 31625009, at *7

(Tenn. Crim. App. Nov. 7, 2002), perm. app. denied (Tenn. Mar. 10, 2003). Rule

14(c)(1) states:

If a defendant moves for a severance because an out-of-court statement of a

codefendant makes reference to the defendant but is not admissible against

the defendant, the court shall determine whether the [S]tate intends to offer

the statement in evidence at trial. If so, the court shall require the

prosecuting attorney to elect one of the following courses:

- 52 -

(A) a joint trial at which the statement is not admitted in evidence or

at which, if admitted, the statement would not constitute error;

(B) a joint trial at which the statement is admitted in evidence only

after all references to the moving defendant have been deleted and if

the redacted confession will not prejudice the moving defendant; or

(C) severance of the moving defendant.

Tenn. R. Crim. P. 14(c)(1). This court has stated:

Tennessee Rule of Criminal Procedure 14(c)(1) provides a specific

procedure when severance is sought on the basis of "an out-of-court

statement of a codefendant [which] makes reference to the defendant but is

not admissible against the defendant.” According to the Advisory

Commission Comments, this provision specifically addresses "the Bruton

issue . . . making severance unnecessary where no Bruton violation would

follow, as would be true, for example, where the confessing codefendant

testifies or where redaction eliminates any prejudice to the nonconfessing

codefendant.” Tenn. R. Crim. P. 14, Advisory Comm'n Cmt. (citing

Bruton, 391 U.S. 123).

Joletta Summers v. State, No. W2016-02157-CCA-R3-PC, 2017 WL 2998787, at *9

(Tenn. Crim. App. July 14, 2017), perm. app. denied (Tenn. Dec. 11, 2017). The "rule in

Bruton does not apply to confessions . . . from which 'all references to the moving

defendant have been effectively deleted, provided that, as deleted, the confession will not

prejudice the moving defendant.'” Dorsey v. State, 568 S.W.2d 639, 642 (Tenn. Crim.

App. 1978) (quoting ABA Standards Relating to Joinder and Severance § 2.3(a)(ii)

(1967)).

On direct appeal, Petitioner argued that the trial court erred in not granting her

motion to sever. Joshua Starner, 2016 WL 1620778, at *21. Because Petitioner had

"abandoned” the motion at trial and failed to raise it in her motion for new trial, this court

reviewed the issue under plain error. Id. The court concluded:

The evidence presented at trial did include statements by each Defendant.

Those statements, however, did not implicate each other, and neither

Defendant testified against the other. Both Defendants agreed that the

victim was not in the care or control of anyone other than the two of them.

Both Defendants indicated that the victim had suffered a fall from a Jeep

while "mudding.” Both Defendants indicated that the victim was acting

- 53 -

normally the day of the killing. Neither Defendant offered any explanation

for the victim's injuries other than the bare allegation that they had not

caused the injuries and so the other Defendant must have, by implication,

caused them. [Co-Defendant]'s statement included one sentence saying

that [Petitioner] also "spanked” the victim, but the trial court redacted that

sentence from his statement, and it was never heard by the jury. . . . There

is no indication that a severance was "necessary to achieve a fair

determination of the guilt or innocence of” the Defendants. Tenn. R. Crim.

P. 14(c)(2)(ii) (2000). Further, there is no evidence that a severance was

required pursuant to Tennessee Rules of Criminal Procedure 14(c)(1),

permitting severance of co-defendants where a Bruton violation would

follow.

Id.

We agree. The State admitted Co-Defendant's redacted statement to police to

prove that he was present at the time of the victim's fatal injuries, and his redacted

statement as presented to the jury did not directly refer to Petitioner. Neither codefendant admitted to witnessing the other co-defendant inflict the fatal injuries on the

victim. While it is true that Co-Defendant's counsel sought to blame Petitioner for the

murder, arguments of counsel are not evidence and are not relevant in determining

whether a Bruton violation has occurred. See United States v. Sandini, 888 F.2d 300, 311

(3d Cir. 1989) ("Bruton is directed toward preserving a defendant's right to crossexamination, and thus has nothing to do with arguments of counsel based on their

interpretation of the evidence.”). Thus, no Bruton issue required severance.

Moreover, the co-defendants' defenses were not antagonistic to the degree

requiring severance in order to fairly determine the guilt or innocence of the codefendants. See e.g., State v. Erica D. Goodner, No. E2007-01048-CCA-R3-CD, 2009

WL 605141, at *43 (Tenn. Crim. App. Mar. 10, 2009) (finding no reversible error where

only two co-defendants were present at the time of the victim's death and where both of

the co-defendants' statements, while denying their own involvement, did not directly

implicate the other co-defendant). There was no basis to grant a motion to sever at trial,

and Petitioner presented no evidence at the post-conviction hearing that additional

investigation by trial counsel would have revealed a successful basis for a motion to

sever. Therefore, we cannot conclude that trial counsel was deficient for failing to renew

the motion to sever, and Petitioner has not shown that a motion to sever would have been

granted and thus cannot prove prejudice. Petitioner is not entitled to relief on this issue.

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2. Other Pretrial Motions

Petitioner argues that trial counsel was ineffective for filing "a paltry pleading

entitled Motion to Dismiss” that was two sentences in length and argued that "the State

has no evidence against [Petitioner].” She contends that trial counsel was ineffective

because he told the trial court that he was "making the motion at the insistence of his

client” and that he conceded he had no legal grounds for the motion. Petitioner also

argues that trial counsel was deficient for failing to file a motion for a bill of particulars, a

motion in limine to exclude evidence of Petitioner's "flat affect,” and "other pretrial

motions.” Petitioner concedes that she cannot demonstrate whether there was a

reasonable probability that these motions would have affected the outcome; however, she

argues that trial counsel was deficient for failing to file them.

Petitioner does not assert the legal basis on which trial counsel should have filed a

motion to dismiss or any other pretrial motion. Accordingly, Petitioner has not shown

deficient performance or prejudice and is not entitled to relief on this issue.

B. Failure to Investigate

Trial counsel has a duty to "conduct appropriate investigations, both factual and

legal, to determine what matters of defense can be developed.” State v. Burns, 6 S.W.3d

453, 462 (Tenn. 1999) (citing Baxter, 523 S.W.2d at 933). "[C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary. In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the circumstances, applying

a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691; see

Burns, 6 S.W.3d at 462. However, "when a defendant has given counsel reason to

believe that pursuing certain investigations would be fruitless or even harmful, counsel's

failure to pursue those investigations may not later be challenged as unreasonable.”

Strickland, 466 U.S. at 691.

1. Co-Defendant's Military Records: Military Tribunal

Petitioner argues that trial counsel was deficient for failing to investigate CoDefendant's military records. She contends that Co-Defendant's statements to Detective

Charvis, as provided by Detective Charvis's prior sworn testimony to a military tribunal,

coupled with Detective Charvis's prior sworn testimony that he could not pinpoint

Petitioner as a suspect, would have created reasonable doubt as to Petitioner's guilt.

Thus, she argues, trial counsel's deficient performance in failing to investigate and

present these statements resulted in prejudice.

- 55 -

The State responds that trial counsel was not deficient for failing to investigate

Co-Defendant's military records because Petitioner was unaware of what those records

contained and because Petitioner refused to implicate Co-Defendant in the crime. The

State contends that the contents of the records would not have been admissible because a

"third party defense” is not available to a defendant where the third party is her codefendant and where she could be culpable for his actions under the theory of criminal

responsibility. The State argues that Petitioner cannot prove prejudice because "any

evidence portraying [C]o-[D]efendant as the physical abuser would not undermine the

jury's conclusion that [P]etitioner was criminally responsible for his abuse.” Moreover,

the State argues that, without confronting Detective Charvis with the tribunal testimony

at the post-conviction hearing, Petitioner cannot prove prejudice. The State contends

that, due to the evidence presented at trial, the statements were unlikely to undermine

Detective Charvis's credibility.

a. Deficient Performance

The post-conviction court did not make a finding regarding deficient performance

for failing to investigate Co-Defendant's military records but relied on the prejudice

prong in denying relief. Assessing trial counsel's decision not to investigate "for

reasonableness in all the circumstances,” and applying a "heavy measure of deference to

counsel's judgments,” we believe that trial counsel was deficient in his failure to

investigate Co-Defendant's military records. See Strickland, 466 U.S. at 691.

Based on the record before us, trial counsel knew that Co-Defendant had been in

the military, and Petitioner asked trial counsel if he was going to get any military records

prior to trial. Moreover, Mr. Simmons testified that, had trial counsel investigated

properly, the crime scene photographs released in discovery showed Co-Defendant's

prescription bottles for medicines treating "psychopathic-type conditions.” He stated that

these bottles "were a huge red flag” and would have led a competent attorney to

investigate Co-Defendant's mental health, which would have led to the military records.

In addition, trial counsel also received a letter almost two years before trial, dated June

12, 2012, from Ms. Rich. This letter stated that, when Ms. Rich met Co-Defendant,

"[Co-Defendant] was rude and controlling toward [Petitioner] and [the victim]. He

exhibited excessive outward sexual behavior towards her, (fondling, touching

inappropriately) with a group of people present. . . . My instincts told me that this was

not a good man for [Petitioner] or anyone for that matter.” Finally, according to CoDefendant's Motion in Limine #4, trial counsel told Co-Defendant's counsel that

Petitioner was going to testify that Co-Defendant was a "sexual deviant.” Trial counsel

had ample evidence that Co-Defendant had mental health issues warranting investigation.

- 56 -

Trial counsel offered no explanation as to why he chose not to investigate CoDefendant's military records other than that "[his] defense was going to be that [CoDefendant] did it.” An attorney cannot "claim that failure to investigate was part of his

trial strategy if the investigation itself was cursory and unreasonable.” Simmons v. Epps,

No. CIV.A 1:04CV496HSO, 2008 WL 4446615, at *26 (S.D. Miss. Sept. 26, 2008)

(citing Wiggins v. Smith, 539 U.S. 510, 527 (2003)), aff'd, 654 F.3d 526 (5th Cir. 2011).

Trial counsel failed to make the most basic inquiries into the only person besides his

client who could be guilty of the crime even though he was handed evidence suggesting

Co-Defendant had significant mental health issues. Additionally, trial counsel stated in

his opening statement that his theory of defense was that Co-Defendant "beat and killed”

the victim; therefore, trial counsel should have investigated sufficiently in an effort to

present some sort of evidence to support that theory. See State v. Zimmerman, 823

S.W.2d 220, 225 (Tenn. Crim. App. 1991); State v. Moorman, 358 S.E.2d 502, 511 (N.C.

1987). Further, Petitioner gave trial counsel no reason to believe that pursuing an

investigation of Co-Defendant's military records "would be fruitless or even harmful.”

See Strickland 466 U.S. at 691. We conclude that trial counsel's inaction fell below

professional standards in failing to investigate the military records of his client's codefendant in a rape and murder trial. Petitioner has satisfied the Strickland deficiency

prong on this issue.

b. Prejudice

Relying on State v. Black, 794 S.W.2d 752 (Tenn. Crim. App. 1990), the State

contends that Petitioner cannot establish prejudice because she did not question Detective

Charvis at the post-conviction hearing regarding the contents of his prior sworn

testimony. However, the State's reliance on Black is misplaced. Black holds that,

"[w]hen a petitioner contends that trial counsel failed to discover, interview, or present

witnesses in support of his defense, these witnesses should be presented by the petitioner

at the evidentiary hearing.” Id. at 757. Here, Detective Charvis testified at trial, so Black

is distinguished from the present case. See James L. Dowell, III v. State, No. M2016-

01364-CCA-R3-PC, 2017 WL 2859010, n. 7, at *14 (Tenn. Crim. App. July 5, 2017)

(considering the prejudicial effect of the likely testimony of a witness, even though that

witness was not presented at the post-conviction hearing, because the witness had

previously testified under oath), perm. app. denied (Tenn. Nov. 16, 2017).

For trial counsel's deficient performance in failing to investigate Co-Defendant's

military records to be prejudicial to Petitioner, Petitioner must show that (1) the content

of Co-Defendant's military records would have been admissible at trial, and (2) there was

a reasonable probability that the outcome of the proceeding would have been different

had those records been admitted. See Terry Lynn King v. State, No. 03C01-9601-CR00024, 1997 WL 416389, at *15 (Tenn. Crim. App. July 14, 1997), aff'd, 989 S.W.2d

- 57 -

319 (Tenn. 1999) (stating that a petitioner suffered no prejudice in an ineffective

assistance claim where the evidence he wanted his trial counsel to investigate was not

admissible in court); Goad, 938 S.W.2d at 370.

"[A]n accused is entitled to present evidence implicating others in the crime.”

State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003). "[T]he Rules of Evidence govern

admissibility of evidence implicating someone other than the defendant.” State v. Gary

Thomas Reed, No. E2009-02238-CCA-R3-CD, 2011 WL 1842711, at *9 (Tenn. Crim.

App. May 12, 2011) (citing Powers, 101 S.W.3d at 394-395), perm. app. denied (Tenn.

Aug. 24, 2011). Under the Tennessee Rules of Evidence, "hearsay” is any statement,

other than one made by the declarant while testifying at trial or in a hearing, offered into

evidence to prove the truth of the matter asserted. Tenn. R. Evid. 801. Hearsay

statements are not admissible unless they fall within one of the evidentiary exceptions or

some other law renders them admissible. Tenn. R. Evid. 802. "Prior statements of

witnesses, whether consistent or inconsistent with their trial testimony, constitute hearsay

evidence if offered for the truth of the matter asserted therein.” State v. Braggs, 604

S.W.2d 883, 885 (Tenn. Crim. App. 1980). "Hearsay within hearsay is not excluded

under the hearsay rule if each part of the combined statements conforms with an

exception to the hearsay rule provided in these rules or otherwise by law.” Tenn. R.

Evid. 805.

Co-Defendant's statement to Detective Charvis which Detective Charvis testified

to at the military tribunal -- that "the child was okay when [Petitioner] left the house” and

that "[Co-Defendant] was the only person in the house during that time period” --

constitutes hearsay within hearsay. See id. Co-Defendant's statement to Detective

Charvis was admissible as substantive evidence as an "admission by a party opponent”

because it was his own statement that could have been offered against him at trial. See

Tenn. R. Evid. 803(1.2)(A); NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE §

8.06[2] at 8-54 (6th ed. 2011). Further, his statement to Detective Charvis was

admissible as a "statement against interest” because Co-Defendant was unavailable at

trial and because his statement directly contradicted his defense theory that Petitioner

inflicted the fatal injuries, "render[ing] invalid a claim by the declarant against another.”

See Tenn. R. Evid. 804(a), (b)(3); State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008)

(stating that the assertion of the Fifth Amendment privilege against self-incrimination

renders a declarant "unavailable” for purposes of Tennessee Rule of Evidence 804); see

also State v. Charles Sanderson, No. M2007-00387-CCA-R3-CD, 2008 WL 624922, at

*8 (Tenn. Crim. App. Mar. 7, 2008) (concluding that a statement of an unavailable

declarant which exculpates a declarant's co-defendant must also inculpate the declarant

to be admissible under the statement against interest hearsay exception). Thus, CoDefendant's statement to Detective Charvis was admissible as substantive evidence under

two hearsay exceptions. Tenn. R. Evid. 803(1.2)(A), 804(b)(3); United States v.

- 58 -

Volpendesto, 746 F.3d 273, 288 (7th Cir. 2014) (stating that a statement against interest

may be admitted as substantive evidence against a co-defendant).

Having concluded that Co-Defendant's statement itself was admissible, we also

determine that the content of Detective Charvis's prior sworn testimony at CoDefendant's military separation tribunal was admissible under the Rules of Evidence.

Regardless of how Detective Charvis would have answered questions regarding his prior

sworn testimony at trial, the content of the prior sworn testimony would have been

admissible. One of three scenarios would have played out at trial: Detective Charvis

would have admitted to making the prior sworn testimony, or he would have been unable

to fully and accurately recall the prior sworn testimony, or he would have denied making

the prior sworn testimony.

Under the first scenario, no further analysis is necessary -- the content of CoDefendant's statement would be admissible as substantive evidence under Rules

803(1.2)(A) and 804(b)(3), as explained above, rather than hearsay within hearsay.

Under the second scenario, while the transcript itself would not have been admissible, the

content of the prior sworn testimony would have been admissible as substantive evidence

as a past recorded recollection. See Tenn. R. Evid. 803(5); State v. Davis, 466 S.W.3d

49, 62 (Tenn. 2015) (quoting Mitchell v. Archibald, 971 S.W.2d 25, 28 (Tenn. Ct. App.

1998)). Under the third scenario, the transcript of the prior sworn testimony would have

been admissible as substantive evidence as a prior inconsistent statement. See Tenn. R.

Evid. 613(b), 803(26).

Having concluded that the content of Detective Charvis's prior sworn testimony

was admissible under all three scenarios, we must now determine whether the failure to

investigate prejudiced Petitioner. Goad, 938 S.W.2d at 370. The post-conviction court

made no findings of fact regarding Detective Charvis's prior sworn testimony. CoDefendant's statement to police, which was admitted as an exhibit at trial, indicated that

the victim was "as happy as ever” after Petitioner left for the commissary. We conclude

that Co-Defendant's statement to police as admitted at trial was similar enough in content

to Detective Charvis's prior sworn testimony that the absence of the prior sworn

testimony did not prejudice Petitioner.

Finally, the absence of Detective Charvis's prior determination that he could not

"pinpoint” Petitioner as a suspect was not prejudicial. At the time of Detective Charvis's

prior sworn testimony, he did not have the time estimate from Dr. Wushensky. The State

did not choose to indict Petitioner until after this time estimate was made. Had Detective

Charvis been confronted at trial with his prior sworn testimony, he would have been

permitted to explain his prior inconsistent statement. Tenn. R. Evid. 803(26), 613(b).

We conclude that Detective Charvis's prior determination that Petitioner was not a

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suspect would not have affected his credibility or altered the outcome of the proceeding.

Goad, 938 S.W.2d at 370.

2. Co-Defendant's Military Records: Suicidal/Homicidal Ideations

Petitioner argues that trial counsel failed to offer proof of his claim during his

opening statement that "[Co-Defendant] killed the baby.” She contends that trial

counsel's failure to investigate and present evidence of Co-Defendant's suicidal and

homicidal ideations prejudiced her.

The State responds that Petitioner has failed to show that Co-Defendant's military

records of his medical treatment "would have provided the proper 'ammunition' to

convict him and spare her a guilty verdict.” It contends that "[a]ny evidence portraying

[C]o-[D]efendant as the physical abuser would not undermine the jury's conclusion that

[P]etitioner was criminally responsible for his abuse.”

As previously concluded, trial counsel was deficient for failing to seek CoDefendant's military records. Thus, the question before us is whether the absence of the

evidence of Co-Defendant's mental health issues as revealed in those records prejudiced

Petitioner in light of the evidence presented against her at trial.

In Co-Defendant's military records, the following information is found regarding

Co-Defendant's mental health:

Date Relevant Medical Chart Notes

July 18, 2008 ï‚· Anxiety

ï‚· anger

ï‚· depression

ï‚· easily angered for past six months, worsening over past 2-3

months

August 21, 2008 ï‚· anxiety disorder

ï‚· history of suicidal and homicidal ideation (SI/HI)

ï‚· last (SI/HI) incident . . . was 19 Aug 08 after having been

"yelled at” by a superior

ï‚· fear of losing self-control

ï‚· inability to communicate effectively

ï‚· depression as a chronic condition

ï‚· hypersensitivity being quick to take offense

ï‚· overreacting to real or imagined slights or failures

September 27, 2008 ï‚· anxiety disorder

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October 17, 2008 ï‚· depression

ï‚· disturbed conduct

ï‚· quite upset and tearful . . . after a confrontation with his

[non-commissioned officers]

ï‚· If [Co-Defendant] remains in the Army he will continue to

struggle to adapt and may present a significant risk to

himself and others[.]

ï‚· poor integration

ï‚· marginal duty performance

October 20, 2008 ï‚· depression

ï‚· adjustment disorder

October 25, 2008 ï‚· depression

ï‚· adjustment disorder

October 27, 2008 ï‚· depression

ï‚· adjustment disorder

While the evidence of Co-Defendant's anger and suicidal and homicidal ideations

would have assisted Petitioner in her defense theory that Co-Defendant was the one who

inflicted the fatal injuries, we conclude that this evidence alone would not have affected

the State's theory that she was culpable under the theory of criminal responsibility.

Therefore, we cannot say that the absence of Co-Defendant's military records showing

the state of his mental health and his violent tendencies would have a reasonable

probability of affecting the outcome at trial. Petitioner is not entitled to relief on this

issue.

3. Petitioner's Mental Health Records

a. Deficient Performance

Petitioner argues that trial counsel was deficient in failing to procure her mental

health records because trial counsel observed her "flat affect” and admitted that, when he

sees a client with a "flat affect,” it is important to know if there is an underlying mental

health issue. She contends that trial counsel had a duty to anticipate the State's and CoDefendant's theories of culpability.

The State responds that trial counsel acted reasonably in choosing not to

investigate. Moreover, the State argues that Petitioner's mental health records would not

have rebutted the medical evidence that the victim died of blunt force trauma. It argues

that the mental health records could not have overcome Dr. Wushensky's testimony

- 61 -

regarding the timing of the fatal injuries and that Petitioner was still in the home at that

time.

Two years before trial, in a letter dated June 7, 2012, Lauranne D. Thatcher,

Mental Health Examiner with the State of Oregon, told trial counsel that, after the

victim's death, Petitioner

began to demonstrate all the behaviors that are associated with

Posttraumatic Stress Disorder (PTSD) including recurrent and intrusive

distressing recollections of the murder and persistent numbness of general

responsiveness when discussing the event. This came across as a flat

affect. She avoided stimuli associated with the trauma and had some

inability to recall important aspects of the murder. She had markedly

diminished interest in significant activities, seemed detached from others

and had a sense of a foreshortened future (hopelessness.) I observed that

she had four out of the five persistent symptoms of chronic PTSD;

difficulty falling or staying asleep, irritability or outbursts of anger,

difficulty concentrating, and hypervigilance. The duration of these

symptoms continued well over a year and [Petitioner] has worked with

therapists and doctors to learn to live with this disorder and to try to adjust

to normal life again.

Trial counsel recalled that, when he met with Petitioner, she had a "flat affect” and

said that she "seem[ed] to lack emotion,” yet in the same line of questioning, he testified

that he did not recall "there being any information about people having a flat affect.” He

thought that Co-Defendant's counsel "just brought that up somewhat out of the blue” and

"was not expecting that[.]” Trial counsel did not recall whether Petitioner told him about

her mental health diagnoses and stated that he did not "think that she was either

incompetent or was insane at the time.” Petitioner testified that she told trial counsel that

she had "some mental health diagnoses” since the victim's death but did not assert that

she was "crazy” or "not in [her] right mind.” Mr. Simmons testified that criminal defense

attorneys should "pay attention” to mental health issues in a case because these issues

"directly affect behavior and they're present in almost all cases, especially in homicide

cases.”

Trial counsel had "a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland, 466

U.S. at 691. Trial counsel's stated reason for choosing not to investigate Petitioner's

mental health was that he "never saw anything when [he] talked with [Petitioner] that

indicated to [him] that she had mental problems or emotional problems that warranted an

evaluation or an investigation.” However, in the course of the few meetings he had with

- 62 -

her over a two-year period,4 he noticed that she had a flat affect and was unemotional

when discussing the case, and he also had a letter from a mental health professional

indicating Petitioner had significant mental health issues and had been through treatment

with "therapists and doctors.”

Citing Henley v. State, the State argues that trial counsel was reasonable in not

investigating Petitioner's mental health records because Petitioner did not tell him about

her mental health issues. In Henley, the petitioner was convicted of capital murder. 960

S.W.2d at 573. The petitioner presented testimony from an expert witness on postconviction that the petitioner "lost the family farm because he had a learning disability

and was a bad manager and that [the petitioner] was depressed about the loss of the

family farm and was 'self-medicating' with alcohol and drugs near the time of the

homicides.” Id. at 582-583. The petitioner argued that his trial counsel was deficient for

failure to investigate his mental health and present this evidence at his sentencing hearing

as mitigating evidence. Id. at 583. This court reversed his convictions, and the supreme

court reinstated them, stating:

At the trial of this case, the [petitioner] maintained his innocence, flatly

denied that he had been intoxicated on the day of the murders, and also

denied ever abusing drugs. Moreover, [the petitioner] said his farming

operation had failed because of unpredictable weather, a drought followed

the next year by floods. Clearly then, the evidence for which trial counsel

is now faulted for not discovering and introducing would have been

inconsistent with the [petitioner's] own testimony and harmful to the

defense theory throughout the trial.

Id.

This case is markedly different from Henley. First, the mental health evidence

provided by Petitioner at the post-conviction hearing testimony in no way conflicts with

any of the information provided by Petitioner to trial counsel. Trial counsel in Henley

had no information at all regarding any mental health issues of the petitioner; in fact, the

petitioner flatly denied any issues. However, in this case, trial counsel had his own

observations of a "flat affect” as well as a letter from a mental health professional

regarding Petitioner's PTSD following the death of her child and that Petitioner had

sought treatment with "therapists and doctors.” We distinguish Henley on these grounds.



4 The post-conviction court found that trial counsel remembered meeting with Petitioner "two or

three times;” however, this misconstrued the evidence. Trial counsel only recalled that it "wasn't many”

times that he met with Petitioner. Petitioner testified that it was "[j]ust a couple [meetings]. Two or three

maybe.” In contrast, Ms. Lindsey met with Co-Defendant every month, and Ms. Phillips met with CoDefendant "over a dozen times.”

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Petitioner testified that she told trial counsel of her mental health diagnoses; trial

counsel testified that he did not recall what Petitioner told him regarding her mental

health issues. The post-conviction court found that "[t]here was no evidence that

[P]etitioner informed counsel of an emotional or psychological condition.” It is true that

"[t]he reasonableness of counsel's actions may be determined or substantially influenced

by the defendant's own statements or actions[,]” and "what investigation decisions are

reasonable depends critically on such information.” Nesbit, 452 S.W.3d at 796 (citing

Strickland, 466 U.S. at 691); see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002)

(quoting Strickland, 466 U.S. at 691) ("Although a defendant's statements or confessions

do not eliminate counsel's duty to investigate, the reasonableness of counsel's actions

'may be determined or substantially influenced by the defendant's own statements or

actions.'”) Notably, Strickland stands for the proposition that trial counsel may make a

reasonable decision not to investigate based on information provided by or the actions of

a defendant; it does not stand for the proposition that trial counsel has no duty to

investigate unless a defendant affirmatively volunteers information. See Andrews v.

Davis, 944 F.3d 1092, 1111 (9th Cir. 2019) ("[N]either Strickland nor its progeny suggest

that a client's failure to affirmatively volunteer information about his past relieves

counsel of the independent duty to investigate it—especially when the record suggests

counsel never bothered to ask.”); Commw. v. Malloy, 856 A.2d 767, 788 (Pa. 2004) ("The

onus is not upon a criminal defendant to identify what types of evidence may be relevant

and require development and pursuit” because "[c]ounsel's duty is to discover such

evidence through his own efforts, including pointed questioning of his client.”); see also

John Henry Sparrow, III v. State, No. M2004-00492-CCA-R3-PC, 2004 WL 2853375, at

*8 (Tenn. Crim. App. Dec. 10, 2004) (finding deficient performance regardless of

whether the defendant volunteered facts to trial counsel regarding two defense witnesses),

perm. app. denied (Tenn. June 20, 2005); but see United States v. Miller, 907 F.2d 994,

999 (10th Cir. 1990) (concluding that trial counsel cannot be ineffective for failing to

investigate when a defendant affirmatively withholds "the essential and foundational

information required to trigger such an investigation” from trial counsel).

Even granting deference to the post-conviction court's finding that there was "no

evidence” that Petitioner informed trial counsel of her mental health issues, trial

counsel's duty to investigate remained in light of the information he did have --Ms.

Thatcher's letter to trial counsel as a mental health professional and trial counsel's own

observations that Petitioner had a "flat affect” and was "unemotional.” Moreover, trial

counsel did not seek out anyone who knew Petitioner, and he chose not to discuss any

issues with the witnesses that came forward of their own accord. Trial counsel did not

speak with any medical professionals at all, except for "whoever authored the autopsy

report.” "[I]n most cases a defense attorney, or his agent, should interview not only his

own witnesses but also those that the government intends to call, when they are

accessible.” Burns, 6 S.W.3d at 462 (citing Baxter, 523 S.W.2d at 933).

- 64 -

Trial counsel cannot fail to interview most of the witnesses, ignore Petitioner's

friends and family, confer sparsely with Petitioner over the course of two years, disregard

a letter from a mental health professional and his own observations about Petitioner, and

then claim that his decision not to investigate was reasonable because he did not know

about Petitioner's mental health issues. Further, if trial counsel had spoken to the State's

witnesses, he would have been able to anticipate the use of Petitioner's unemotional

demeanor as evidence of her guilt, rather than claim that the strategy came "out of the

blue.” We see no evidence that trial counsel made a reasonable decision that would have

rendered such investigations unnecessary, and we find that his failure to investigate

Petitioner's mental health "resulted from inattention, not reasoned strategic judgment.”

See Wiggins, 539 U.S. at 526. Moreover, we conclude that there were sufficient red flags

regarding Petitioner's mental health that trial counsel was deficient in failing to

investigate. See e.g., Maurice Johnson v. State, No. E2017-00037-CCA-R3-PC, 2018

WL 784761, at *19 (Tenn. Crim. App. Feb. 8, 2018), perm. app. denied (Tenn. June 6,

2018) (finding that, where trial counsel had discovery pointing to potential alibi

witnesses, he was deficient in failing to investigate); Blain Steven Covert v. State, No.

E2013-02531-CCA-R3-PC, 2014 WL 4345724, at *8 (Tenn. Crim. App. Sept. 2, 2014)

(finding deficient performance where trial counsel ignored information from the

defendant's parents, his grandmother, and another relative that the defendant received

mental health counseling and prescription medication as well as the defendant's own

statements that he was recently diagnosed with multiple emotional disorders).

Finally, the State contends that trial counsel did not find Petitioner's behavior to

warrant investigation into her mental health for the defenses of "incompetency, insanity,

or diminished capacity.” However, Petitioner has never argued that she was incompetent,

insane, or had diminished capacity; rather, she argues that evidence of her mental health

diagnoses would have rebutted evidence presented against her at trial regarding her lack

of emotion and unusual comments. We conclude that Petitioner has satisfied the

deficiency prong of Strickland.

b. Prejudice

Had trial counsel properly investigated Petitioner's mental health problems, he

would have discovered that, following the victim's death, Petitioner was involuntarily

committed to MTMHI for a suicide attempt and was diagnosed with PTSD, depression,

anxiety disorder, panic attacks, dependent personality disorder, and dissociative disorder.

Ms. Zern testified as an expert witness at the post-conviction deposition that Petitioner

appeared to have a "flat affect” because traumatic events caused "hypo-arousal, where

she would sort of numb out, or she would . . . dissociate. And so when she was numb,

she often looked flat.” Ms. Zern stated that she observed Petitioner's dissociative state

several times over the course of Petitioner's twenty-eight months of treatment. She stated

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that trauma survivors "who are in an acute phase, there's a bit of unreality and shock, and

you can . . . hardly tell that anything has happened.” (emphasis added). This evidence

would have rebutted the State's witnesses who testified that Petitioner's demeanor was

"flat” or "unemotional” at the hospital and that she behaved abnormally by texting and

asking inappropriate questions. Moreover, Ms. Zern's testimony would have directly

contradicted the arguments of both the prosecutor and Co-Defendant's counsel that

Petitioner's affect and comments were evidence of her guilt. See Joshua Starner, 2016

WL 1620778, at *24.5



The State argues that Petitioner's mental health records did not rebut the medical

proof at trial. However, as stated previously, Petitioner's argument has never been that

the medical proof was wrong but rather that she was not present when the fatal injuries

were inflicted and that she did not know what happened. Further, the evidence against

Petitioner, while sufficient for conviction, was not overwhelming. See United States v.

Montgomery, 442 F. Supp. 3d 875, 891 (W.D. Pa. 2020), as amended (Mar. 4, 2020)

(stating that sufficient evidence for conviction "does not preclude a finding of

prejudice”), appeal dismissed, No. 20-1865, 2020 WL 6277527 (3d Cir. Aug. 11, 2020).

The State argued in its closing that "old bruising” showed that Petitioner and CoDefendant spent the "weekend” beating the victim. Of the nine medical professionals

who testified, only one -- Dr. Abramo -- testified that he saw "old bruising” of "varying

degrees” on the victim that looked "greater than a day.” However, Dr. Abramo did not

testify as to the extent or severity of the bruising -- whether it was bruising consistent

with an uncoordinated toddler or something more sinister -- and the State provided no

evidence that the "old bruising” was related to the infliction of fatal injuries as charged

here. In fact, Dr. Lewis stated that the severe injuries which she saw during the autopsy

were "inflicted at or around the same time” rather than over the course of days as

suggested by the State.

Further, Dr. Wushensky testified at trial that the time between the infliction of

victim's injuries and the time of his brain scan at 3:58 p.m. was possibly "six to eight

hours.” Dr. Wushensky repeatedly warned that his estimate was not an exact timeframe



5

In finding the evidence sufficient to convict Petitioner on direct appeal, this court stated:

Multiple witnesses to [Petitioner's] behavior after [Petitioner] called 911 reported that

she expressed no emotion. She did not go near the victim in the small emergency room.

During questioning by the police, [Petitioner] did not inquire about the health status of

the victim. During questioning by child services, [Petitioner] did not appear upset, spent

time texting on her phone, and expressed frustration that the victim might have to go to

foster care if he survived. She also inquired about selling her possessions.

Joshua Starner, 2016 WL 1620778, at *24.

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and was based on studies performed on adults rather than children. He stated that he

could not "extrapolate back from a single picture” to get an exact timeframe. However,

even if Dr. Wushensky's estimation was exact, six to eight hours prior to 4:00 p.m. is

8:00 a.m. to 10:00 a.m.6

Petitioner told the police that she left the apartment at about

"10:00 or 10:30” that morning, which was corroborated by the commissary receipt and

the cell phone records. Based on Dr. Wushensky's estimate of the timing of the victim's

injuries, Petitioner could have been in the car on the way to the commissary when the

fatal injuries were inflicted, or she could have been present in the home.



Because the evidence against Petitioner was not overwhelming, and because

Petitioner's mental health evidence would have answered serious questions regarding her

demeanor, we conclude that there was a reasonable probability that the outcome of the

proceedings would have been different had trial counsel investigated Petitioner's mental

health. Goad, 938 S.W.2d at 370. The absence at trial of the evidence of Petitioner's

mental health diagnoses undermines our confidence in the verdict. Id.

The State argues that trial counsel provided evidence in the form of a medical

record from Vanderbilt Children's Hospital, in which social worker Edith Crumb noted

that Petitioner was "grieving appropriately” and that she asked to speak to a chaplain.

Therefore, the State contends, the absence of Ms. Zern's testimony and Petitioner's

mental health records did not prejudice Petitioner. However, trial counsel admitted that

he did not even speak to Ms. Crumb or eight of the nine medical personnel who testified.

Further, the note in Ms. Crumb's medical record that Petitioner was "grieving

appropriately” did not explain the observations of other witnesses of Petitioner's "flat

affect” or her unusual comments. A great deal of the case against Petitioner was based

on her "flat affect” and her comments at the hospital. Therefore, we conclude that trial

counsel's presentation of two lines in a medical record at trial does not preclude a finding

of prejudice, where the admitted medical record did not specifically explain the unusual

observations of other trial witnesses, and where trial counsel did not even interview or

call as a witness the author of that medical record. See e.g., Sears v. Upton, 561 U.S.



6 We note that the prosecutor at the post-conviction hearing and the State on post-conviction

appeal averred that the latest time the injuries could have been inflicted was "9:00 a.m.” based on Dr.

Wushensky's testimony. See Joshua Starner, 2016 WL 1620778, at *5. Moreover, this Court on direct

appeal stated that Dr. Wushensky's testimony was that the timing of the injuries "would have been before

9:00 a.m.[,]” which "placed [Petitioner] at the apartment when the injuries occurred.” Id. at *5, *24.

However, 9:00 a.m. is seven hours prior to 4:00 p.m., not the six hours which Dr. Wushensky estimated

could be the latest time. "This case lends further support to the old saying that lawyers can't do math.”

Layer-Rosario v. Allied Mortg. Capital, No. 3:16-CV-00628, 2017 WL 1347770, at *1 (M.D. Tenn. Mar.

17, 2017) (citing Debra Cassens Weiss, Posner: Lawyers Bad at Math are an Increasing Concern;

Inmate's Blood-Pressure Suit Shows Why, ABA JOURNAL (Oct. 29, 2013) ("Innumerable are the

lawyers who explain that they picked law over a technical field because they have a 'math block.'”)).

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945, 954 (2010) (stating that presenting "some evidence” does not "foreclose an inquiry”

into whether a deficient investigation was prejudicial) (emphasis in original); Williams v.

Taylor, 529 U.S. 362, 369, 399 (2000) (finding that, despite trial counsel's presentation

of some mitigating evidence during the penalty phase, there was "a reasonable

probability that the result of the sentencing proceeding would have been different” had

trial counsel "presented and explained the significance of all the available evidence”)

(emphasis added).

Finally, the State argues that the MTMHI records "also indicated that [P]etitioner

may have faked the suicide attempt,” which would be a "valid reason not to delve into

[P]etitioner's mental history” at trial. Upon release from MTMHI, the doctor noted:

[Petitioner] was thinking about her son's death and felt sad. She cut her left

wrist and ankle and called her friend. She did not tell . . . anyone that she

wanted to bleed to death. She didn't cut deep, she did not need stitches.

She says that she cut her wrist to take away her pain and relieve her

emotions but not to kill herself. It was not a suicide attempt. She had no

intentions of killing herself. She denies any suicidal/homicidal ideation or

hallucinations or prior suicide attempts.

. . . .

She was seen by the medical team, wound care was ordered for the wounds

on her left wrist and left ankle. The following day, she slept well, rested

well, denied any suicidal/homicidal ideation and tolerated her medications

okay without side effects. Toward the end of her stay, she was feeling

better, had a brighter affect. No further self[-]injurious behaviors. She

tolerated the Celexa without any side effects. She continued to do well and

improve.

We consider the State's characterization of this medical note as evidence of a

"fake suicide attempt” to be specious. Moreover, Ms. Zern's testimony would have

rebutted this characterization, explaining that, when Petitioner was released from

MTMHI, she likely tried to "minimize either [her] current suicidality or what [she was]

admitted for. It's also possible that she had -- that she was feeling better, you know, she

was less suicidal when she left [MTMHI].” Thus, the post-conviction court erred in

concluding that "there has been no showing that the absence of [Ms. Zern's] testimony

establishes a prejudice to the defense of Petitioner.” Based on this ground, we reverse the

judgment of the post-conviction court and remand for a new trial.

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C. Failure to Present Witnesses

Petitioner argues that trial counsel was deficient for failing to call four known

character witnesses who had asked before trial to testify on Petitioner's behalf. Citing

Strader v. State, 344 S.W.2d 546, 547 (Tenn. 1961), Petitioner contends that the character

witnesses would have offered "relevant character evidence on [Petitioner's] innocence”

that would "make it improbable” that she "would be guilty of the crime charged.”

The State responds that trial counsel's decision not to call the character witnesses

is entitled to deference. It contends that Petitioner was not prejudiced by trial counsel's

decision because the character witnesses would not have "undermined the outcome of the

trial given the undisputed medical evidence[.]”

When a petitioner claims that trial counsel was ineffective for failing to discover,

interview, or present a witness in support of the petitioner's defense, such witness should

be presented at the post-conviction hearing. Black, 794 S.W.2d at 757. As this court has

previously stated:

As a general rule, this is the only way the petitioner can establish

that (a) a material witness existed and the witness could have been

discovered but for counsel's neglect in his investigation of the case, (b) a

known witness was not interviewed, (c) the failure to discover or interview

a witness inured to his prejudice, or (d) the failure to have a known witness

present or call the witness to the stand resulted in the denial of critical

evidence which inured to the prejudice of the petitioner. It is elementary

that neither a trial judge nor an appellate court can speculate or guess on the

question of whether further investigation would have revealed a material

witness or what a witness's testimony might have been if introduced by

defense counsel.

Id. Without presenting the witness's testimony at the post-conviction hearing, the

petitioner generally cannot establish prejudice under Strickland. Id. at 758.

1. Deficient Performance

Here, Petitioner called five witnesses to testify at the post-conviction hearing, four

of whom had contacted trial counsel prior to trial and asked to be called as a witness. All

five of the witnesses testified that, until Petitioner moved to Tennessee four weeks before

the victim's death, Petitioner was still the loving, nurturing mother they had always

known. They testified that Petitioner made her own baby food and was scrupulous about

doctor's appointments and the victim's health. None of the witnesses had ever seen

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Petitioner exhibit anger or impatience with the victim or with anyone else. The four

witnesses who asked trial counsel if they could testify were all told that they would not be

needed at trial.

One witness was a medical professional, one was a mental health professional, one

was Petitioner's godmother, and two were long-time friends. Ms. Converse, a home

health nurse, testified that she was shocked when she learned Petitioner was charged with

the victim's murder "[b]ecause that [wa]s not the person [she] knew.” Ms. Converse

stated that she "just wanted to voice how -- what a protective and concerned mama she

was” and that Petitioner was always concerned about doing the right thing as a parent.

Ms. Thatcher, a mental health professional, testified, "I never heard a voice raised. . . .

[S]he was very soft-spoken, kind, encouraging. . . . And I just noticed that there was no

yelling.” Ms. Thatcher said that, after sending trial counsel a letter detailing Petitioner's

mental health issues following the victim's death, she called trial counsel. However, she

said that trial counsel "didn't want to hear anything from [her].” Ms. Maranov,

Petitioner's godmother, testified that she never saw Petitioner get rough, aggressive, or

violent or lose her temper with the victim. Ms. Maranov observed good eye contact

between Petitioner and the victim, "lots of hugs and kisses,” "[a] lot of affection[,]” and

"[r]eally good nutrition.” Ms. Rich testified, "[N]o one is going to convince me that in

seven weeks” from the time of Petitioner's wedding until the victim died, "[P]etitioner

could change that much” so as to murder her child. Ms. Holley testified that she never

observed Petitioner discipline the victim in an inappropriate way or be rough with him.

Ms. Holley stated that Petitioner was always reading to the victim and that Petitioner was

very selective about choosing a daycare. She testified that she was "sick” when she heard

Petitioner was arrested because it "wasn't the [Petitioner] that [she] knew[.]”

Petitioner presented these five witnesses to the post-conviction court and has

shown that trial counsel was aware of four of the witnesses prior to trial. The postconviction court made no findings of fact regarding the credibility of these witnesses.

The post-conviction court concluded that Petitioner had not shown prejudice, stating,

"Testimony of Petitioner's conduct in providing care for her child while living in Oregon,

prior to her moving to Tennessee and prior to her marriage to [C]o-[D]efendant, . . .

seems unlikely to be relevant to the issue of her appearing to display sufficient emotion.”

We agree with Petitioner that these witnesses offered relevant character evidence

which could have been admitted as opinion and reputation testimony. See Tenn. R. Evid.

404(a)(1) ("In a criminal case, evidence of a pertinent trait of character offered by an

accused” is admissible); State v. Davidson M. Taylor, No. W2006-00543-CCA-R3-CD,

2007 WL 3026374, at *4 (Tenn. Crim. App. Oct. 12, 2007) ("[A] defendant's proof under

Rule 404 (a)(1) is limited to reputation and opinion evidence only.”). Trial counsel stated

that he did not use the character witnesses because did not think they were relevant and

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because presenting character witnesses for Petitioner would have "offended” the jury. He

said that "it was . . . not a great defense to talk about what a great mom she was based

upon the condition of [the victim].” We find this explanation wholly unreasonable. We

see no legitimate strategic reason that he ignored this important evidence which was

handed to him. See Murrell v. Giroux, No. 1:13-CV-2573, 2018 WL 509371, at *17

(M.D. Pa. Jan. 23, 2018) ("[T]his court is unable to conceive of any reason to refrain

from calling known character witnesses on behalf of a defendant who has no criminal

history, claims he has a reputation in the community for good moral character, and is

accused of a vicious murder.”). We conclude that trial counsel was deficient in failing to

interview and present these character witnesses.

2. Prejudice

Turning to the prejudice prong, we conclude that, had trial counsel presented all

four of the witnesses who had contacted him prior to trial, Ms. Rich, Ms. Converse, Ms.

Holley, and Ms. Thatcher, there is a reasonable probability that the outcome of the

proceeding would have been different. As stated previously, the evidence against

Petitioner, while sufficient for conviction, was not overwhelming. Significant evidence

of her long history of good character as a loving, nurturing, attentive mother had a

reasonable probability of changing the outcome because "[g]ood character is a flower of

the slow growth of years and does not change overnight.” Strader, 344 S.W.2d at 547-

548; see also State v. Hobbs, 705 S.E.2d 147, 148 (Ga. 2010) ("Good character . . . can

by itself create a reasonable doubt as to a defendant's guilt and lead to an acquittal.”).

We conclude that the testimony of these character witnesses may have "made it

improbable” that Petitioner "would be guilty of the crime charged” to the point that our

confidence in the outcome of the verdict is undermined. Strader, 344 S.W.2d at 548;

Goad, 938 S.W.2d at 370; see also Murrell, 2018 WL 509371, at *18 (finding that, in a

"close case” where the evidence not overwhelming, "it is quite possible that the

presentation of character witnesses attesting to [the petitioner's] good character could

have tilted the balance of the scales in his favor”). Thus, trial counsel's deficient

performance in failing to present these known character witnesses prejudiced Petitioner,

and we reverse and remand for a new trial based on this ground.

II. Cumulative Error

The cumulative error doctrine recognizes that there may be many errors

committed in trial proceedings, each of which constitutes mere harmless error in

isolation, but "have a cumulative effect on the proceedings so great as to require reversal

in order to preserve a defendant's right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76

(Tenn. 2010). To warrant review under the cumulative error doctrine, there must have

been more than one actual error during the trial proceedings. Id. at 77.

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For cases that warrant assessment under the cumulative error doctrine, our

supreme court explained:

Of necessity, claims under the cumulative error doctrine are sui

generis. A reviewing tribunal must consider each such claim against the

background of the case as a whole, paying particular weight to factors such

as the nature and number of the errors committed; their interrelationship, if

any, and combined effect; how the [trial] court dealt with the errors as they

arose (including the efficacy—or lack of efficacy—of any remedial efforts);

and the strength of the [State's] case. The run of the trial may also be

important; a handful of miscues, in combination, may often pack a greater

punch in a short trial than in a much longer trial.

Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993)) (alterations

in original).

Reversals for cumulative error are rare. State v. Herron, 461 S.W.3d 890, 910

(Tenn. 2015). However, prior cases exemplify when reversal is appropriate. See State v.

Bigbee, 885 S.W.2d 797, 809-12 (Tenn. 1994), superseded by statute on other grounds as

stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn. 2004). For example, in Bigbee,

the Tennessee Supreme Court reasoned, "Though each of the errors discussed above

might have been harmless standing alone, we find that, considered cumulatively, the

improper prosecutorial argument and the admission of irrelevant evidence affect the

jury's sentencing determination to the defendant's prejudice.” Id. at 812.

Here, trial counsel failed to approach the most basic standards of professional

conduct. He did not speak to anyone involved in the investigation except "whoever

authored the autopsy report” and "two or three” police officers. He did not interview

eight of the nine medical personnel who testified at trial. He did not interview or call as a

witness the one medical staffer who noted that Petitioner was "grieving appropriately.”

He did not interview Petitioner's family or friends in Oregon. He did not investigate the

mental health of either Petitioner or Co-Defendant. He did not investigate CoDefendant's military records. He ignored letters from Petitioner's friends and family,

including one from a mental health professional. He filed two pretrial motions and

conceded in court that there was no legal basis for them. He refused to call the four

character witnesses who asked to testify on Petitioner's behalf. In fact, he did not call

any witnesses at trial. He did not cross-examine eleven of the fifteen witnesses at trial.

He never met with Co-Defendant's counsel, Ms. Phillips. Given the gravity of the

criminal charges against Petitioner, trial counsel could not have reasonably elected to rely

exclusively on a grocery store receipt for his defense and to forego all other investigation.

See Gregg v. Rockview, 596 F. App'x 72, 77 (3d Cir. 2015); see also People v. Irvine,

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882 N.E.2d 1124, 1137 (2008). ("[A]n attorney cannot be found to have made decisions

based on valid trial strategy where he or she fails to conduct a reasonable investigation,

fails to interview witnesses, and fails to subpoena witnesses.”). We conclude that trial

counsel's almost complete inattention to Petitioner's case was deficient performance.

Jeffrey Whitaker v. State, No. E2001-02399-CCA-R3-PC, 2003 WL 21276125, at *3

(Tenn. Crim. App. June 3, 2003) (citing State v. Mitchell, 753 S.W.2d 148, 149 (Tenn.

Crim. App. 1988)) ("In evaluating counsel's performance, this court should not examine

every allegedly deficient act or omission in isolation, but rather we should examine them

in the context of the case as a whole.”).

Moreover, had the jury been apprised of Petitioner's mental health issues,

including her dissociative disorder; Co-Defendant's mental health issues, including his

suicidal and homicidal ideations; and the numerous character witnesses who testified to

how attentive and loving a mother Petitioner was, we believe there is a reasonable

probability the outcome of the proceeding would have been different. Thus, we conclude

that the accumulation of a myriad of errors prejudiced Petitioner, requiring reversal based

on cumulative error.