Court of Criminal Appeals of Tennessee, Nashville
Session March 11, 2014
Direct Appeal from the Criminal Court for Davidson County No. 2005-A-215 J. Randall Wyatt, Jr., Judge
Charles W. Bone, Nashville, Tennessee; J. Houston Gordon, Covington, Tennessee; Lyle Reid, Covington, Tennessee; Paul J. Bruno, Nashville, Tennessee; and Joe G. Riley, Ridgely, Tennessee, for the appellant, Cyntoia Denise Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams, J., joined.
Norma McGee Ogle, Judge
I. Factual Background
We glean the following relevant facts from this court's direct appeal opinion of the Petitioner's convictions: On the evening of August 7, 2004, police officers from the Metropolitan Nashville Police Department responded to a 911 call and found the body of the victim, Johnny Allen, in a bedroom of his home. State v. Cyntoia Denise Brown, No. M2007-00427-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 301, at *4 (Nashville, Apr. 20 2009), perm. to appeal denied, (Tenn. 2009). The nude victim was lying face-down on the bed in a large pool of blood, and his "hands were beneath his face, his fingers 'kind of partially interlocked, '" as if he had been sleeping. Id. at **4, 15. An autopsy revealed that he had been shot in the back of the head and that he did not have any defensive wounds. Id. at **28-29. In the early morning hours of August 8, 2004, officers found the victim's white pickup truck in a Walmart parking lot and arrested the Petitioner at a nearby hotel. Id. at *6. At the time of Petitioner's arrest, she was sixteen years old and staying at the hotel with a man she referred to as "'Cut.'" Id. at **6, 8.
The Petitioner waived her Miranda rights and gave a statement to police in which she said that on the night of August 6, 2004, she was walking near a Sonic Drive-In when the victim, whom she did not know, picked her up in his truck. Id. He drove her to the Sonic, they ordered food, and the victim offered to let her spend the night at his home. Id. The Petitioner accepted the victim's offer, and they went to his house. Id. at *9. There, the victim showed the Petitioner some guns, and they got into bed together. Id. The victim whispered to and touched the Petitioner and reached underneath the bed. Id. The Petitioner thought the victim was reaching for a gun, so she pulled a .40 caliber handgun out of her purse and shot him. Id. at *10. She took money out of the victim's wallet and two of his guns, drove his truck to the Walmart parking lot, and had someone drive her to the hotel where she was later arrested. Id. The Petitioner denied that she was a prostitute or that she had sex with the victim. Id.
The Petitioner was tried as an adult, and the jury rejected her claim of self-defense, finding her guilty of first degree premeditated murder, first degree felony murder, and especially aggravated robbery, a Class A felony. See id. at **34-35. The trial court merged the murder convictions and sentenced the Petitioner to life. Id. at *35. After a sentencing hearing, the trial court imposed a concurrent twenty-year sentence for the especially aggravated robbery conviction. Id. On appeal, this court affirmed the Petitioner's murder convictions but modified her conviction of especially aggravated robbery to aggravated robbery, a Class B felony, and remanded the case for sentencing as to that offense. Id. at *3. On remand, the trial court sentenced her to eight years and ordered that she serve the sentence concurrently with the life sentence.
After our supreme court denied the Petitioner's application for permission to appeal, she filed a timely pro se petition for post-conviction relief based, in pertinent part, on the denial of the effective assistance of counsel and newly discovered evidence "that Fetal Alcohol Syndrome played a part in [her] actions on the night in question." The post-conviction court appointed counsel, and counsel filed an amended petition, maintaining that the Petitioner received the ineffective assistance of counsel and alleging that her life sentence was unconstitutional.
The record reflects that "counsel" and "co-counsel" represented the Petitioner at trial. At the post-conviction evidentiary hearing, counsel testified for the Petitioner that she and co-counsel began representing the Petitioner after the Petitioner's transfer hearing in juvenile court. The Petitioner had testified at the transfer hearing, and trial counsel reviewed tapes of the hearing. Counsel said that she and the Petitioner had many discussions about whether the Petitioner should testify at trial and that "there were parts of her [transfer hearing] testimony that were worrisome for us if they came out at trial." Counsel thought that if the Petitioner's trial testimony differed from her transfer hearing testimony, the State would be able to impeach her on cross-examination. Counsel stated, "I, apparently, was wrong, but I do recall having that conversation with her." Counsel said that there were other reasons why she did not want the Petitioner to testify but that she assumed that particular reason "played a factor" in the Petitioner's decision.
Counsel testified that the Petitioner had received a mental evaluation for juvenile court and that trial counsel had her re-evaluated. Counsel received three bankers boxes from the Petitioner's juvenile court attorney, and one of those boxes was full of the Petitioner's psychological and medical records. Counsel reviewed everything in the boxes and did not seek an expert in fetal alcohol spectrum disorder (FASD). Regarding the disorder, counsel stated, "I am sure I had heard of it. . . . I became much more familiar with it after Mr. [Dan] Birman found or interviewed some people."
On cross-examination, counsel testified that she became licensed to practice law in 1992 and that for the first sixteen years of her practice, including the Petitioner's 2006 trial, she practiced criminal law exclusively. Counsel estimated that at the time of the Petitioner's trial, she had tried fifty to sixty cases. The Petitioner had given a videotaped statement to police, and trial counsel filed a motion to suppress the statement. Trial counsel also gave Dr. William Bernet, a forensic psychiatrist from Vanderbilt University, the results of the Petitioner's previous mental evaluations. Dr. Bernet re-evaluated the Petitioner and testified at the suppression hearing about whether the Petitioner knowingly and intelligently waived her Miranda rights prior to giving her statement to police. Counsel said that in addition to the Petitioner's mental evaluation for suppression purposes, "I know we had to make sure she was competent so we certainly did an evaluation for competence. I am not sure if we went any further at that point on any other mental health issues." Counsel described the Petitioner as "brilliant" but said that "her personality was all over the place and you didn't know who you were going to be talking to from time-to-time, but it wasn't competency issues, it was more like there was something wrong that we couldn't figure out what it was."
Counsel testified that she and co-counsel considered using a mental health defense but decided against it because "unless you have some sort of objective evidence to go with it such as a brain scan that showed damage or something that juries seem hesitant to really give a lot of weight to psychological testimony." Trial counsel also decided not to use a mental health defense because many of Dr. Bernet's opinions were based on "bad things" about the Petitioner that trial counsel did not want revealed to the jury. Counsel said that she did not remember Dr. Bernet's mentioning fetal alcohol syndrome (FAS), and she acknowledged that she would have "looked into" FAS if someone had mentioned the disorder.
Counsel testified that co-counsel was "one of the best lawyers in the State" and that they filed numerous pretrial motions in the Petitioner's case. They also examined the physical evidence and hired an investigator. Counsel said that the Petitioner's statement to police was "for the most part consistent" with her story to trial counsel and that "[t]here were some reasons to believe that her [self] defense was supported." Counsel and the Petitioner talked "quite a bit" about whether the Petitioner would testify at trial, and counsel thought the Petitioner's direct examination testimony would be "powerful." However, counsel was worried that the Petitioner would lose her temper on cross-examination because the Petitioner had lost her temper in meetings with trial counsel, had lost her temper with guards, and "had an inability at times to control her emotions." Counsel also considered how the State had cross-examined the Petitioner during the transfer hearing, that the State would cross-examine her at trial about her statement, and that the State would cross-examine her at trial about "some facts that were bad." At the juvenile transfer hearing, the Petitioner had testified that she took a shower after the shooting. Counsel was worried that if the Petitioner testified at trial, the Petitioner would not testify about the shower and that the State would impeach her. Counsel said the State "would have been able to cross-examine her rather effectively and that was part of what we weighed." The Petitioner never changed her basic version of the events, and co-counsel practiced cross-examination with her. However, practice "wasn't quite the same thing" as real cross-examination at trial. Counsel said her "impression was that [the Petitioner] relied on our advice" not to testify. Although the Petitioner did not testify at trial, the jury heard her self-defense claim through her statement to police.
On redirect examination, counsel acknowledged that if the Petitioner's transfer hearing testimony could not be used against her at trial, then counsel's concern about the testimony did not justify counsel's recommendation that the Petitioner not testify. Dr. Bernet had been involved with the Petitioner's case in juvenile court, so he was familiar with her. Counsel said that FAS "never crossed my radar" and that no one ever mentioned FAS until Dan Birman telephoned her after the Petitioner's trial. She explained,
So the entire time we represented Cyntoia it just seemed like something didn't make sense and, I mean, she is not the only client that that has happened with, so, but when Dan called me and had discovered this information and I saw the recording of this doctor, whose name I don't remember, talking about Fetal Alcohol Syndrome and what the symptoms are and what it causes in a person, it kind of in my mind made it all make sense.
On recross-examination, counsel acknowledged that Dr. Bernet was an expert in juvenile psychiatry and that he concluded the Petitioner suffered from disorders that interfered with her ability to make decisions and interfered with her relationships with people. In other words, he concluded that the Petitioner suffered from a personality disorder. Counsel said that if the Petitioner had been diagnosed with FASD, "we would have still analyzed . . . the cost benefit of admitting it versus not" because "usually there is baggage with any mental health . . . findings."
The Petitioner testified that she met with counsel and co-counsel in preparation for trial and that they planned to present a theory of self-defense. Trial counsel told the Petitioner that it was her decision whether to testify and that the judge would instruct the jurors that they could not hold her decision not to testify against her. The Petitioner said that she and trial counsel "talked about, um, the juvenile testimony coming in and that is why they didn't think it would be a good idea." The Petitioner and her family wanted her to testify, but she took trial counsel's advice because she trusted them. Counsel told the Petitioner not to make faces or have outbursts during the trial. The Petitioner said that counsel "probably looked at some issues that I had had before."
The Petitioner testified that if she had testified at trial, she would have stated the following: Months before she killed the victim, the Petitioner ran away from her adoptive parents' home. She was staying with different people in Nashville and using drugs and alcohol. In July 2004, she met "Cut Throat, " who was twenty-four years old, and began using cocaine and staying in a hotel with him. At first, "Cut" was nice to her. However, he began verbally and physically abusing her. He also sexually assaulted her and made her prostitute herself. The Petitioner had to give the money she earned to Cut. She said that he was violent to her, that he almost killed her one time by choking her, and that she was scared of him.
The Petitioner testified that on the day of the victim's death, she was "pretty sure" she was using drugs because "[t]hat is all I ever did." She said, "Cocaine definitely, I probably smoked some weed too." The Petitioner left the hotel and started walking toward the Sonic. The victim stopped his truck and asked if she needed a ride and was hungry. The Petitioner got into his truck, and the victim parked at the Sonic. He asked her if she was "up for any action, " meaning he wanted to pay her for sex, and the Petitioner told him that she would have sex with him for $200. The victim offered to pay her $100, and they ultimately agreed that he would pay her $150. She said that the victim was "an old Caucasian man" and that she thought he was about fifty years old. However, he turned out to be "forty-something."
The Petitioner testified that the victim ordered food from the Sonic and that she told him about her family. The victim told her that he used to be in the military, that he was a sharp-shooter, and that he could "shoot the eye out of a piss ant." The victim drove the Petitioner to his home and offered her some wine. He tried to kiss her, but she pushed him away. The victim showed the Petitioner a gun and "was talking about all of these guns." He offered to let her take a shower. When the Petitioner got out of the shower, the victim was lying on the bed and was naked except for shiny "gold disco ball like boxers." The Petitioner, who was fully clothed, went downstairs with the victim to watch television. The Petitioner thought the victim was "weird." She was going to run, but a gun cabinet was in the room. The victim told the Petitioner that he wanted to make love to her and that he loved her. They went to his bedroom, and the Petitioner asked him if she could take a nap. The victim told her yes, so the Petitioner took off her skirt and pretended to sleep. The victim was touching the Petitioner and kept getting in and out of bed, and the Petitioner began to panic because she did not know what he was doing. The Petitioner thought the victim's behavior was odd. She said that the victim got back into bed, that he grabbed her "really hard, " and that she thought he had figured out she was "faking to be asleep." She said that she saw him roll over "maybe to reach for something, " that she thought he was "gonna get a gun or he is gonna do something to me, " and that she "just . . . reacted." The Petitioner, who was lying on her stomach, "kinda raised up, " reached over to the nightstand on her side of the bed, took a gun out of her purse, and fired the gun one time. She said that Cut had given her the gun to protect herself and that she had never fired it before she shot the victim.
The Petitioner testified that she thought the victim had gone to sleep and that he did not hear the gunshot. As she was fleeing his home, she realized that she did not get any money from him. She did not want to go back to Cut empty-handed, so she took some of the victim's guns. The Petitioner drove the victim's truck to the hotel and told Cut that she thought she had shot someone. He told her to drive the truck to the Walmart parking lot. The Petitioner drove the truck to the parking lot, and a man drove her back to the hotel. The next day, the Petitioner called 911. She said she did not go to the victim's house intending to rob or shoot him and that "[a]ll I wanted to do was leave."
On cross-examination, the Petitioner testified that she showered before she shot the victim, not after. Otherwise, the Petitioner thought counsel's evidentiary hearing testimony was accurate. She acknowledged that if trial counsel had presented a mental health expert at trial, the State could have cross-examined the expert about the Petitioner's attempt to escape from Western Mental Health Institute (WMHI), her drug use, her asking someone after the shooting to take her back to the victim's house so she could take the rest of his property, her lengthy juvenile history, and her disciplinary issues at the juvenile detention center and jail. She also acknowledged that in a pretrial jailhouse telephone call to her adoptive mother, she told her mother that she "executed" the victim. The Petitioner had understood the charges against her and received a transcript of her statement to police before trial. In the statement, she told the police that she bought the gun off the street. She said she lied in the statement about where she got the gun in order to protect Cut because she was afraid of him. She acknowledged that in the statement, she told the police that she did not know what happened to the gun after the shooting. She said she was telling the truth because she gave the gun to Cut and did not know what he did with it. The Petitioner stated that even though the State could have cross-examined her about all of those things, she still had wanted to testify at trial. She acknowledged that co-counsel practiced cross-examination with her and that she considered the practice in deciding whether or not to testify.
Dr. Richard Adler, a clinical and forensic psychologist from Seattle, Washington, testified that FASD encompassed five different disorders, including FAS and Alcohol Related Neurodevelopmental Disorder (ARND), all of which "relate to the fact that alcohol is a particularly heinous poison to the developing fetus." Dr. Adler explained that the "primary disability" in FASD was damage to the baby's brain. As a person with FASD grew up, the person also experienced "secondary disabilities" such as having trouble with school, behavior, obtaining employment, and the law.
Dr. Adler testified that FASD became recognized in 1973 when studies showed that alcohol was "one of the worst poisons that is known to the developing fetus and it is a general poison meaning that it effects each and every cell." The brain was the organ most negatively affected. Eight years later, the United States Surgeon General began warning the public about the negative effects of alcohol on pregnancy. In 1996, when the Petitioner was eight years old, the Institute of Medicine authored a book on how to diagnose FASD, which was still being used at the time of the post-conviction evidentiary hearing. Dr. Adler said that an FASD diagnosis was based on a confirmed exposure to alcohol; facial anomalies, particularly small openings of the eyes, a flat philtrum, and a thinned upper lip; growth retardation; central nervous system (CNS) abnormalities that could be found from an MRI, CAT scan, Quantitative Electroenchephalogram (QEEG), or physical examination; cognitive or "thinking" abnormalities; and birth defects that could affect almost every organ in the body. Post-conviction counsel asked Dr. Adler how easy it was to diagnose a child with FASD. Dr. Adler answered that "sadly, it's not that easy" and that a study revealed only fifty percent of board certified pediatricians thought they were capable of diagnosing FASD.
Dr. Adler testified that in June 2011, he performed a physical examination of the Petitioner. He said that a second doctor performed neuropsychological testing and that a third doctor examined the Petitioner's historical background because "it does take multiple people working together to make the diagnosis." According to the Petitioner's biological mother, Georgiana Mitchell, Mitchell drank alcohol continually while she was pregnant with the Petitioner and could drink "up to a fifth or more a day." Regarding the Petitioner's facial deformities, she had a significantly flattened philtrum, which was the area between the bottom of the nose and the top of the upper lip, and the "suggestion" of a flattened mid-face. He noted that she also had clinodactyly, another very important finding associated with FASD, in that the third and fifth fingers of both hands were curved. Dr. Adler observed nystagmus, which was an abnormality of the CNS, and a QEEG showed abnormalities in the middle of the Petitioner's brain. As to the Petitioner's cognitive abnormalities, she had deficits associated with FASD in five areas: (1) visual/spatial planning, (2) impulsivity, (3) motor coordination, (4) receptive and expressive communication, and (5) adaptive functioning. He noted that she also had areas of impairment in social cognization, mathematics, verbal learning and memory, executive functioning, and personal hygiene and domestic skills. Based on all of the information gathered, Dr. Adler concluded that the Petitioner suffered from ARND.
Dr. Adler testified that the Petitioner had a "remarkable" I.Q. of 134 but that she did not function like a typical person with such high intelligence. He stated that "her functional abilities are terrible and they are so terrible they are equivalent to a person with mild mental retardation." He said that a common misconception was that having ARND was less serious than having FAS because people diagnosed with FAS had the "full face presentation" for FASD and an I.Q. ten points lower than a person diagnosed with ARND. He said having ARND was actually worse than FAS because individuals with ARND usually were not diagnosed until "one bad thing happens after the next." Thus, a person with FAS typically received a diagnosis and intervention before a person with ARND. Adults with ARND functioned like people with mild mental retardation. In 2011, the Vineland Adaptive Behavior Scales showed that the Petitioner was functioning like a thirteen- or fourteen-year-old.
Dr. Adler testified that he found evidence of childhood psychosis in the Petitioner's medical records. For example, during an episode at Middle Tennessee Mental Health Institute, the Petitioner had "appeared to be completely out of touch with reality." A test administered to the Petitioner the next day found that she "'might be becoming psychotic, but she is able to control her thoughts some of the time.'" He stated that in 2000, "among the diagnoses in her records was that she might have bipolar disorder with psychotic features or they were concerned about psychotic disorder not otherwise specified." He said that a test administered to the Petitioner in 2002 found her to have "dissociation, which is a very primitive mental defense mechanism" and that dissociation was a "rare and worrisome psychiatric symptom."
Dr. Adler testified that ARND was a mental disease and defect, not a personality disorder, and that the Petitioner was "seriously impaired." The Petitioner was born with the disorder and was suffering from it when she shot the victim. He stated that the Petitioner had "baseline suspiciousness of others" and that her thinking "isn't particularly linear." Dr. Adler said that the Petitioner's testimony about being in the bedroom with the victim and not sure what he was doing was "pretty remarkable" in that "these particular psychological and psychiatric abnormalities that are in all likelihood directly related to Fetal Alcohol Spectrum Disorder were likely operative at least as she is reporting it and I heard it at the time of the subject offense."
On cross-examination, Dr. Adler acknowledged that he was retained by the Petitioner's post-conviction attorneys and was being paid for his work and appearance in court. He stated that he was going to be paid "in the 10 to $12, 000 range up to this moment, some things haven't been billed yet" and that the amount did not include the work of his two colleagues. Dr. Adler said that although FASD was not specifically mentioned in the Diagnostic and Statistical Manual of Mental Disorders (DSM), "the negative affect of alcohol is mentioned in the section of mental retardation because fetal alcohol is the number one cause of mental retardation, so its in that section." His actual diagnosis of the Petitioner was "cognitive disorder not otherwise specified 294.9, " which was in the DSM. Dr. Adler acknowledged that he never met or spoke with the Petitioner's biological mother and that he learned about her alcohol consumption from an affidavit ...