Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs July 23, 2014
Appeal from the Criminal Court for Hamilton County No. 276560 Rebecca J. Stern, Judge
Donna Miller, Chattanooga, Tennessee, for the appellant, Reginald Dewayne Tumlin.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; William H. Cox, III, District Attorney General; Charles D. Minor and Kristen D. Spires, Assistant District Attorneys General for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which James Curwood Witt, Jr., J., and Joe H. Walker, III, Sp. J., joined.
ROBERT W. WEDEMEYER, JUDGE
I. Background and Facts
This case arises out of the death of the Defendant's three-year-old son, the victim. After a police investigation into the death, a Hamilton County grand jury indicted the Defendant for felony murder during the perpetration of aggravated child abuse, aggravated child abuse, felony murder during the perpetration of aggravated child neglect, and aggravated child neglect. These charges were tried by a jury in June 2012.
Jamie Boles, a registered nurse, testified that she treated the victim when he arrived at the emergency room of Erlanger Children's Hospital on May 1, 2010. She said that a woman, who was "upset, " brought the victim to the emergency room. The victim was pale, not breathing, and Ms. Boles could see bruising on him. She said that her first impression upon seeing the victim was that he was dead. The woman who brought the child to the hospital told Ms. Boles that, when she had arrived home from work, she began playing with the victim when he began "acting funny" and started "breathing funny, " so she brought him to the hospital. Ms. Boles stated that she immediately took the victim to a trauma room and checked for a pulse. Finding none, she began chest compressions. Ms. Boles identified and the trial court admitted into evidence the victim's emergency room records. Ms. Boles stated that, according to the emergency room records, the victim arrived at 3:19 a.m. and was pronounced dead at 3:34 a.m.
Ms. Boles described her observations of the victim's injuries:
There was [sic] multiple bruisings and abrasions on his arms and behind his ears, on his face, on his legs. There was [sic] bite marks. There was bruising on his legs. And a place on one of his legs from where it looked like a scar, like a healing burn or something along those lines. So he had multiple abrasions and bruising and the bruises were all in different stages of healing.
She stated that her observation of the injuries was consistent with ongoing abuse and not a "one night instance."
Kristen Goodin, a registered nurse, testified that she was in the trauma room of the emergency room when Ms. Boles ran in "with this lifeless little boy in her arms." Once the victim was placed on the stretcher, Ms. Goodin observed "extensive bruising, " bite marks on the victim's arms, "fingernail marks" on the victim's ears, and burn marks on the back of the victim's leg. Ms. Goodin stated that her role in the trauma room that night was to serve as the recorder and keep a record of the procedures administered. She described the treatment to the victim as follows:
When he was initially placed we hook[ed] him up to our monitors, which show if there's any heart rate or breathing or anything going on. And there wasn't. So immediately we go to the procedures of starting a code and doing CPR on him. We start[ed] the compressions. And we went through - -we bagged him, which means we have the ambu bag out [ ] trying to breath[e] for him. And [respiratory] therapists came in an[d] intubated him, and we continued with the compressions and we started administering epinephrine, which we did two rounds, which is one of the drugs we use in codes.
Ms. Goodin testified that, based upon her experience, the injuries she observed on the victim were consistent with inflicted injuries.
Sam Crites, II, a registered respiratory therapist, testified that on May 1, 2010, he was paged to the emergency department trauma room at Children's Hospital of Erlanger. He initiated pediatric advanced life support on the victim in an attempt to resuscitate him. As he prepared the victim for placement of an endotracheal tube, he observed that the victim had "a slightly blue hue to him, " and Mr. Crites did not see any spontaneous respirations. Mr. Crites stated that the victim's pH was less than 6.5 and for normal functioning the pH needs to stay within 7.35 and 7.45.
Dale Dubois testified as an expert in the field of pediatric medicine and was the treating physician at the Erlanger emergency room on May 1, 2010. In preparation for his testimony at trial, Dr. Dubois reviewed the emergency department records, photographs, and the coroner's report. He recalled that the victim was brought to the emergency room early in the morning. When the victim arrived, he was not breathing, he did not have a heart rate, and he did not have a pulse. Dr. Dubois said that the victim was immediately taken to a trauma room where a device helped put air into his lungs, chest compressions were started, an IV was placed, and the victim was administered two rounds of medicine to restart his heart. He said that, with all of this intervention, the victim never started breathing on his own, never regained a heart rate, and never had a pulse. Medical personnel declared the victim "dead on arrival."
Dr. Dubois testified that the victim had considerable bruising "covering" his extremities, upper body, face, and ears. Dr. Dubois described the bruising as in "multiple stages, " meaning that the injuries were incurred at different times. There was a second-degree burn mark on the back of the victim's leg. Dr. Dubois also noted that the victim's pupils were "fixed and dilated, " indicating that the victim had been dead for "some time." Dr. Dubois said that the victim's pupils indicated that he had not had oxygen to his brain for "approximately an hour or so." Dr. Dubois opined that the victim's injuries were not consistent with a fall or injuries inflicted by another three or four-year-old child. He explained that the width of the bite mark on the victim's shoulder, which he described as "very deep" with broken skin, was three inches wide and thus inconsistent with the mouth of a child.
Dr. Dubois testified regarding the victim's ruptured bowel. He stated that symptoms associated with a ruptured bowel would be significant pain, fever, and vomiting. Dr. Dubois said that it was possible for a child to survive a ruptured bowel if treated immediately.
On cross-examination, Dr. Dubois testified that he had "seen" children with ruptured bowels that did "just fine" following a surgery; however, Dr. Dubois stated that he could not predict the outcome in this case because the victim had "so many significant injuries above and beyond" the ruptured bowel. He noted the severity of the injuries to the victim's bowels, stating that the victim's bowel was "degloved and torn off and ruptured in several places, " making it difficult to speculate about the success of a surgery. He agreed that the victim's other injuries did not cause his death but maintained that the other injuries were "significant."
James Metcalfe, the Chief Medical Examiner for the Hamilton County Medical Examiner's office, testified as an expert witness in the field of forensic pathology. Dr. Metcalfe stated that he performed the autopsy on the victim. Dr. Metcalfe identified the order for autopsy and a summary portion on the order form that helped prepare him for the autopsy. From the summary, Dr. Metcalfe learned that Shameka Greer drove the victim to the hospital and that the victim was dead on arrival. Ms. Greer advised medical personnel at the hospital that the victim had complained of stomach pains and was gasping for air. After examining the victim, Dr. Metcalfe determined that the manner of death was homicide and the cause of death was bowel perforations due to blunt force abdominal trauma. He described blunt force trauma as "a very substantial blow" and not the type of injury a child might sustain during "normal child play." Dr. Metcalfe stated that the pattern of injury was consistent with inflicted multiple blunt trauma.
Dr. Metcalfe testified that he found blunt force injury to the victim's abdomen and a rupture of the small intestine. Dr. Metcalfe estimated that the holes in the small intestine had been present for eight to twelve hours before the victim's death. Other injuries in the abdominal cavity may have been present for four or five days. He found bruising on the small intestine, the victim's head, neck, trunk, and all four extremities. Dr. Metcalfe observed marks that resembled bite marks, abrasions, and areas with third-degree burn marks consistent with a burn caused by a cigarette. Dr. Metcalfe found bruising under the victim's scalp, subdural bleeding underneath the thick covering of the brain and a subarachnoid hemorrhage, described as bleeding under the thin covering of the brain. Dr. Metcalfe stated that both of these types of bleeds are caused by blunt force injury. Dr. Metcalfe stated that the injuries to the victim's abdomen would have caused "severe pain and rigidity of the abdominal wall" requiring immediate medical attention. Dr. Metcalfe said that he observed injuries in various stages of healing and, thus, some of the injuries were "old" and some of the injuries were "new."
Dr. Metcalfe testified that there was a "great deal of injury" to the back of the victim's body. He said that he considered the presence of "multiple separate injuries" in determining that the manner of death was homicide. He described the victim's injuries as "a hail storm [ ] of injury, like raining blows." He also considered the severity of the abdominal injury. He stated that there was "major injury through to the soft part of the abdomen, " which is partly protected by the rib cage. Dr. Metcalfe stated that the nature of these injuries were not consistent with an accidental cause.
On cross examination, Dr. Metcalfe agreed that he reviewed x-rays taken of the victim at the hospital, and there was no indication of fractures to the skeletal system.
Latise Ramsey, the victim's aunt, testified that the victim and his mother lived with her and her two children, ages four and eight. Ms. Ramsey stated that the victim went to the pediatrician on a regular basis for well-child checkups. She stated that she went with the victim and his mother to these appointments and that the victim did not have any ongoing health problems.
Ms. Ramsey testified that the victim would stay with the Defendant for two days "maybe once every two months." She recalled that in April 2010, she took the victim to the store with her. As she went in the store, the Defendant approached her and asked if the victim was with her. She indicated that the victim and her cousin were in the car. Ms. Ramsey went in the store and purchased her items. When she returned to the car, the Defendant asked her to call the victim's mother and ask if the victim could stay with him for Easter because he had "an outfit" for the victim and wanted to take the victim to see the Defendant's mother. Ms. Ramsey contacted her sister, the victim's mother, and received permission for the victim to go with the Defendant. Ms. Ramsey stated that the Defendant did not have any injuries on him at this time.
Ms. Ramsey testified that the victim's mother and the Defendant agreed that the victim should continue to stay with the Defendant so that the Defendant could potty train the victim. Ms. Ramsey explained that they had had difficulty potty training the victim and that the victim's mother believed the Defendant might be better to train the victim since he was a man. Ms. Ramsey said that the victim's mother contacted the Defendant frequently and that the Defendant would tell her "let [the victim] stay a little while longer, I almost got him potty trained."
James Tate, a Chattanooga Police Department detective, responded to Erlanger hospital in the early morning hours of May 1, 2010, on a call related to a deceased child. Detective Tate first spoke with Dr. Dubois, the treating physician, and then to the person who brought the victim to the hospital, Shameka Greer, the Defendant's girlfriend. Detective Tate had Ms. Greer transported to the police services center where a recorded interview was conducted. Detective Tate also spoke with the Defendant's sister, Colandra Tumlin, who gave a statement that was inconsistent with Ms. Greer's statement.
Detective Tate testified that the Defendant was not present at the hospital and that he was unable to locate the Defendant that night. Detective Tate stated that he was unable to make contact with the Defendant until May 18, 2010, after seeking assistance from the fugitive unit. When the Defendant was brought into the police service center, he had a hat and wig with him. Detective Tate stated that he reviewed the Defendant's rights with him and that the Defendant signed a rights waiver. The Defendant told police that the victim had been in his custody since April 4, 2010. He explained that the victim's mother had experienced difficulty potty training the victim, so she had allowed the victim to stay with the Defendant in order for the Defendant to potty train the victim. The Defendant stated that the only persons caring for the victim during this time were he, Ms. Greer, and "on an occasion or two" "a grandmother."
Detective Tate testified that the Defendant said that on April 30, 2010, Ms. Greer left for work shortly before 6:00 p.m. while he and the victim remained at home. One of the Defendant's friends, Cornel Watkins, came over, and the two men watched basketball for thirty to sixty minutes. After Mr. Watkins left, the Defendant "play[ed]" with the victim. He described this "play" as wrestling that including biting. He stated that he "bites everyone." He also told the police that he hit the victim and demonstrated the action. In describing the Defendant's demonstration, Detective Tate stated, "He made his right hand into a fist and swung it backwards like a backhand." At some point, the victim "had an accident in his pants, " and the Defendant bathed and changed the victim. The Defendant recalled that Ms. Greer arrived home around 1:00 a.m. after he had finished bathing the victim and was dressing him. Detective Tate said that he confirmed with Ms. Greer's employer that she left work after 12:30 a.m. The Defendant did not "say much" about what occurred after Ms. Greer arrived home, however, he told Defendant Tate that he did not go to the hospital with the victim because he was afraid of "the hospital police" seeing the victim's injuries.
Detective Tate identified photographs of the victim's injuries and confirmed that the photographs fairly depicted the injuries he observed on the victim at the hospital and on May 3, 2010, at the Medical Examiner's office.
On cross-examination, Detective Tate agreed that the Defendant's three other children, two of whom were four years old and the other three years old, were at the Defendant's house on Wednesday or Thursday before the victim died.
On redirect examination, Detective Tate confirmed that from May 1, 2010, until May 18, 2010, both he and the fugitive unit were "actively looking" for the Defendant. He stated that the Defendant did not offer an explanation for the victim's injuries other than "he bites people and he would playful hit his son [while] wrestling and playing."
Bill Phillips, a Chattanooga Police Department sergeant, testified that, on May 1, 2010, Detective Tate notified him of the victim's death. He stated that the victim had been transported to the hospital in a private vehicle and thereafter the hospital notified the police department of a deceased child. Sergeant Phillips was not present during Ms. Greer's interview, but he approached her for consent to search the vehicle she drove to the hospital. Ms. Greer would not provide the name of the owner of the vehicle, but the police later determined the car was owned by Colandra Tumlin, the Defendant's sister. Sergeant Phillips stated that, after police officers had been unsuccessful in locating the Defendant for questioning about the victim's death, he approached the police department's fugitive unit seeking assistance in locating the Defendant. Both the fugitive unit and the U.S. Marshals assisted in locating the Defendant on May 18, 2010. The Defendant was found with a wig. The Defendant stated that he knew that the police were looking for him, and he used the wig to disguise himself.
Sergeant Phillips testified about the police interview of the Defendant on May 18, 2010. He recounted that the Defendant's statement about the events leading up to the victim's death was consistent with Detective Tate's testimony. Additionally, he stated that the Defendant told the police during the interview that he had asked the victim's mother to come and get the victim on April 30, 2010, but that she had not done so. The Defendant told the police that he realized something was wrong with the victim when he heard the victim making noises. He said that he called the victim to him and asked the victim what was wrong. The victim pointed to his stomach and said, "it hurts." The Defendant gave the victim water, and the victim began "acting as though he was choking, " so the Defendant stopped giving him water.
Greg Mardis, a Chattanooga Police Department crime scene investigator, testified that he reported to the hospital on May 1, 2010, where he viewed the victim's body. He described visible injuries to the victim that included cuts, scratches, bites, and burn marks. After taking photographs and collecting the victim's clothing from medical personnel, Detective Mardis went to the Defendant's residence. Here, Detective Mardis did a "walkthrough of the scene" and then took photographs and video recordings of the premises. He identified the photographs of rooms inside the Defendant's residence. Detective Mardis stated that he collected two space heaters from the residence because Ms. Greer had told hospital personnel that a space heater had been the source of the burn on the victim's leg. He also collected an iron from a night stand in "the adult's bedroom." After taking photographs of the vehicle driven to the hospital by Ms. Greer, Detective Mardis went to the Medical Examiner's office to swab the bite marks on the victim's shoulders and arms and take more photographs.
Tim Pickard, a Chattanooga Police Department officer, testified that he worked in the fugitive unit and located the Defendant. Initially, he spoke with the victim's mother, the Defendant's girlfriend, and the mothers of the Defendant's other children. He also spoke with the Defendant's family members and two close friends in an attempt to learn the Defendant's location, but none of these persons knew the Defendant's whereabouts. Several days after trying to locate the Defendant, the fugitive unit employed the help of the U.S. Marshals. The Defendant was ultimately located on May 18, 2010, in an apartment on Sequoyah Drive. Officer Pickard explained that the fugitive unit received information that the Defendant was staying at this location and set up surveillance of the apartment for "a couple of hours" on May 17, 2010.
Officer Pickard testified that at 6:00 a.m. on May 18, 2010, approximately ten officers, including several U.S. Marshals, went to the apartment to make contact with the Defendant. Officer Pickard said that, after surrounding the building to ensure the Defendant did not escape, officers began knocking on the door and windows of the apartment. After approximately thirty minutes, the Defendant's uncle, James Pickett, answered the door and told the police that the Defendant was in "a back bedroom area." The Defendant's hat and wig were lying near the couch where Mr. Pickett indicated the Defendant slept.
On cross-examination, Officer Pickard testified that, after Investigator Tate requested help from the fugitive unit in locating the Defendant for questioning, he learned that the Defendant had outstanding warrants. Officer Pickard agreed that, when a suspect is wanted for questioning, the police can not force the suspect to go to the police service center without a warrant. He stated that the Defendant was arrested on May 18, 2010, on matters unrelated to the homicide investigation.
Adam Emory, a Chattanooga Police Department detective, testified that he was present at the police service center on May 18, 2010, in the conference room where the Defendant was brought after his interview. Detective Emory said that he noticed a wig and a hat sitting on the table near the Defendant. Because it appeared to be "some type of disguise, " he instructed his trainee, Investigator Puglise, that "crime scene" needed to be contacted to collect the wig and hat for evidence. The Defendant responded that he had purchased the items to disguise himself and successfully worn the hat and wig to remain undetected in the presence of police officers. On cross-examination, Detective Emory agreed that the Defendant had been arrested on May 18, 2010, for outstanding warrants unrelated to this case.
Matthew Puglise, a Chattanooga Police Department detective, testified that he came into contact with the Defendant at the police service center on May 18, 2010. He explained that he was in training at the time and that he and Detective Emory walked into the conference room where the Defendant was seated at a table. Detective Emory pointed out the Defendant's hat and wig and referenced it as "a disguise." The Defendant responded that he had worn the items to avoid the police and that he had seen police officers while wearing the items. Detective Puglise said that the Defendant "chuckl[ed]" as he told the officers about being undetected by the police while wearing the hat and wig.
Nathan Bruce testified that he is responsible for the inmate telephone calls at the Hamilton County jail. Mr. Bruce stated that he provided a recording of a telephone call, made around the time of the Defendant's arrest, between the Defendant and Ms. Greer. The following portion of the recording was played for the jury:
[The Defendant]: Man, they got - - I'm down here.
[Ms. Greer]: Man, (Unintelligible) what the fk to do.
[The Defendant]: Man, go get that money and go give it to that lawyer (Unintelligible).
[Ms. Greer]: You just got there?
[The Defendant]: Yeah, I just got to the County.
[Ms. Greer]: Where you been? Where I was?
[The Defendant]: Yeah.
[Ms. Greer]: Oh, my God.
[The Defendant]: I told you last time I talked to you it might be my last time talking to you. I been - - I told you I been looking at - - I been watching him the whole time I've been looking at their cars and don't have anything to worry about. That st crazy. Where you at?
[Ms. Greer]: At home.
[The Defendant]: You okay? (Unintelligible) go get that money and bring it down there to that lawyer. Okay? And see he got going on.
[Ms. Greer]: Okay.
[The Defendant]: That st crazy. It's fked up.
[Ms. Greer]: They ain't beat you up or nothing, did they?
[The Defendant]: No, no, no, no, no, no. No.
[Ms. Greer]: What the fk you (Unintelligible)?
[The Defendant]: I (Unintelligible) about six o'clock this morning I'm looking, I'm looking out the door. I see the (Unintelligible) and they seen - - I seen that st before that st even happened.
[Ms. Greer]: (Unintelligible).
[The Defendant]: They was in there asleep. Talking all that bull st like he was, [ ], you got (Unintelligible) as a motherf*er.
[Ms. Greer]: (Unintelligible).
[The Defendant]: I'm going to tell you, guess how they found me, though.
[Ms. Greer]: What?
[The Defendant]: Because that stupid a fool kept going over my mama house.
[Ms. Greer]: Awww.
[The Defendant]: Yeah. Stupid a motherf*er, you know they're going to follow your dumb a. But like I said though I've been watching them the whole time. I've been watching them for two days straight. I seen how they parked in the lady's driveway and all type of st. I'm looking, I'm saying to myself, I seen the st. I seen the st before -- I seen the st before the st even happened. I was - -I started to leave yesterday but I didn't.
[Ms. Greer]: What the fk I'm going do. I can't go back over my mama's house. It's like (Unintelligible) there.
[The Defendant]: That's fked up.
[Ms. Greer]: I ain't got nowhere to ...