Court of Criminal Appeals of Tennessee, Knoxville
Session November 18, 2014
Appeal from the Circuit Court for Greene County No. 11CR323 John F. Dugger, Jr., Judge
Brent Hensley, Greeneville, Tennessee, for the appellant, Misty Jane Brunelle.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Dan Armstrong, District Attorney General; and Cecil C. Mills, Jr., Assistant District Attorney General, for the appellant, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
On February 2, 2006, Petitioner was convicted by a Greene County jury of three counts of aggravated child abuse in relation to broken bones sustained by her infant daughter ("the victim") in 2003. Petitioner received a total effective sentence of twenty-five years' incarceration. On direct appeal, this Court affirmed the convictions and sentences. Brunelle I, 2007 WL 2026616, at *18. The Tennessee Supreme Court denied Petitioner's application for permission to appeal.
On October 17, 2008, Petitioner filed a pro se petition for post-conviction relief. The post-conviction court appointed counsel, but no amended petition was filed. Petitioner claimed that she received ineffective assistance of counsel and that newly discovered evidence existed in her case, specifically a letter from the University of Washington that a genetic test could not definitively exclude a diagnosis of osteogenesis imperfecta, otherwise known as "brittle bone disease." After a hearing, the post-conviction court denied relief, finding that counsel had not been ineffective and that no newly discovered evidence existed. This Court affirmed the post-conviction court's ruling in part and reversed it in part. Brunelle II, 2011 WL 2436545, at *1. This Court reversed the trial court's ruling that the letter did not constitute newly discovered evidence, but held that such a claim should have been raised in a petition for writ of error coram nobis. Id. at *10.
On August 15, 2011, Petitioner filed a petition for writ of error coram nobis, claiming that newly discovered evidence existed which may have resulted in a different judgment had it been presented at trial. The newly discovered evidence is a letter from the University of Washington's School of Medicine which states that several tests were performed on a skin biopsy of the victim in 2003 to determine whether she had osteogenesis imperfecta (OI). According to the letter:
Typically in individuals with OI type I[, ] the amount of type I procallagen is reduced by half. The cells from your patient synthesized less than normal but greater than half of the usual amount of type I procollagen. We are uncertain if this finding is significant in terms of disease causation or is simply biological variation among samples.
The letter also stated that the tests were "unable to exclude the diagnosis of OI type I." Petitioner asserted that she was unable to obtain this letter during her criminal trial because it was part of the victim's file with the Department of Children's Services (DCS), which was sealed during the victim's adoption proceedings.
The coram nobis court held a hearing on the petition on September 20, 2013. The only witness to testify at the hearing was Dr. Andrew Townsend, the victim's primary care physician for almost ten years. He testified that the victim is currently "a normal, active 10-year-old child with regular activities, no restrictions." The victim has not had any broken bones in the past ten years. Based on his observations and treatment of the victim, Dr. Townsend opined that she is not affected by osteogensis imperfecta. He described the usual symptoms of that disease and testified that the victim does not display any of these symptoms. In addition to recurrent fractures, one such symptom is short stature. Dr. Townsend testified that the victim is above the 50th percentile in both height and weight. Dr. Townsend admitted on cross-examination that he has never treated a child who suffered from osteogenesis imperfecta.
The coram nobis court took the matter under advisement in order to review the victim's medical records as a late filed exhibit. The coram nobis court entered an order denying the writ of error coram nobis on January 23, 2014. The coram nobis ...