Court of Criminal Appeals of Tennessee, Knoxville
Session November 18, 2014.
Appeal from the Criminal Court for Knox County No. 90518 Jon Kerry Blackwood, Judge.
Mark Stephens, District Public Defender, Knoxville, Tennessee, for the appellant, Paul Jerome Johnson, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall Nichols, District Attorney General; and Charme P. Allen and Joanie Stewart, Assistant District Attorneys General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE.
FACTS AND PROCEDURAL HISTORY
This case arose after the eighteen-month-old victim was admitted to East Tennessee Children's Hospital and later passed away due to his injuries. The victim's mother, Aja McBayne, testified that the victim was born on January 14, 2007, and that he did not suffer from any health problems. She met the defendant while both were attending Pellissippi State Community College, and they became friends. This friendship progressed briefly to a sexual relationship. After the sexual relationship "tapered off, " the relationship returned to a friendship. In July of 2008, the sexual relationship was over, and the two "h[u]ng out" as friends. The defendant would occasionally "hang out" at the victim's mother's residence, and he would provide her with transportation when she needed rides.
In July of 2008, the victim's mother's apartment complex discovered that she had been convicted of a felony, and they gave her ten days to vacate the premises. At the time of the incident, she still had access to her apartment and was in the process of moving. She was convicted of conspiracy to counterfeit currency and was awaiting sentencing in July of 2008. The defendant offered to let the victim's mother and her two children stay with him until they found a permanent residence, and she accepted this offer. When she began staying with the defendant, she and the defendant slept on the couch, and her children slept in the front bedroom of the house.
The defendant was frequently around the victim and his brother, and he initially treated them well. However, around the beginning of July, the defendant's attitude toward the children began to change. He told the victim's mother that she "bab[ied]" her children too much and needed to discipline them. He said that the children "were too sensitive" and "whine[d] too much." He would say these things both to the victim's mother privately and in front of the children. He would insult the children, calling them "b****es and p***ies and say they were going to be f****ts when they grew up." The victim's mother recalled that during the time period right before the victim died, the name-calling "seemed to happen all the time." She would confront the defendant about his language, but she felt that at the time she did not "have too many other options" in terms of residency. Her mother and two sisters lived in Knoxville, but none of her relatives had room to take in both herself and her children on a permanent basis. Several of her friends and the victim's paternal grandmother would watch the children.
The defendant was "sometimes" alone with the children, but these periods were brief and occurred only when the victim's mother would "take a shower" or if she "had to run across the street to the store for something."
The week of July 18th, the victim's mother recalled that the victim had been behaving as though he had a cold. While nothing appeared physically wrong with the victim, she observed that the victim, who was typically "full of energy, " now only had "bursts of energy." The victim became tired "quicker than normal, " would sleep for longer periods than normal, and did not display much of an appetite. The victim's mother gave the victim Tylenol, which seemed to dissipate the cold symptoms, but the victim still appeared "lethargic." Initially, she believed that the victim was simply "going through a growth spurt."
On July 18th, the victim's mother dropped her oldest son off at her mother's house and then went to see a movie with the defendant and the victim. After the movie, the three returned to the victim's mother's apartment, where the defendant sat on the porch while the victim played on the porch. The victim was within his mother's eyesight while he was on the porch, and she witnessed him fall while starting to walk down the porch steps. She went to check on the victim, and she observed that the skin on his back was slightly red but not broken. Later that evening, the victim's mother placed an ice pack on the victim. When a friend of hers visited the apartment to see the victim, the defendant went to the porch "and kind of had an attitude."
The victim's mother, the victim, and the defendant left her apartment and returned to the defendant's residence, where she prepared dinner. She placed the victim on the couch next to the defendant while she cooked. She prepared a plate for herself and one for the victim, and she sat down on the couch between the victim and the defendant. The defendant made a comment about the victim's mother "babying" the victim by giving him food off of her plate that caused her to lose her appetite. When the victim finished his dinner, he laid his head down on his mother's lap and fell asleep, and she soon fell asleep herself. The defendant was still on the couch when the victim and his mother went to sleep, and his mother recalled the defendant waking her up to tell her that he was taking the victim to the bedroom so that she could "stretch out" on the couch. The victim's mother assumed the defendant was taking the victim to the front bedroom, but she did not see the defendant after he walked around the couch. The victim appeared normal at this point, and she fell back asleep after the defendant exited the room with the victim.
Sometime later, the defendant woke the victim's mother and was holding the victim. The victim's mother could not remember exactly what time the defendant woke her or how long she had been asleep. She recalled that the victim appeared "limp" and that the defendant was asking her what was wrong with the victim because he was not breathing. The defendant was "hysterical, " "pacing back and forth" and telling her "not to let [the victim] die." The victim's mother began questioning the defendant and asking what he had done because there was nothing wrong with the victim when the defendant took him. The victim was "gasping for air, " and his eyes were "half open, but his pupils were dilated." She felt the victim's chest and discovered that his "heart was beating so fast, but it wasn't strong." She breathed into the victim's mouth, believing that he may have been choking on something. When she saw the victim's chest fill with air, she realized that the victim was not choking.
The victim's mother used the defendant's phone to call her mother, who told her to call 911. She informed the defendant that they needed to take the victim to the hospital, and she called 911 from the defendant's vehicle while he drove to the hospital. During the ride to the hospital, the victim was "gasping" and his lips were "turning dry."
Dr. Robert Dickson was the treating physician in the emergency room when the victim was admitted to the hospital. Dr. Dickson testified that the victim arrived around 1:30 a.m. on July 19th in "in full cardiopulmonary arrest, " which meant that the victim was not breathing and did not have a pulse or heart rate. The victim's pupils were fixed and dilated, which was a sign of severe neurologic injury. When the victim was first admitted, Dr. Dickson did not notice any visible signs of trauma on the victim's body. As Dr. Dickson continued to treat the victim, he noticed that "some bruising" began to appear, and he recalled that there was a large retinal hemorrhage in the victim's right eye. He testified that retinal hemorrhaging was often caused by trauma. Doctors performed a neurological exam, which revealed no neurological activity and that the victim was brain-dead. Dr. Dickson was not able to establish how the victim was injured, but he believed that the victim's prognosis was "bleak" based on his neurologic exam.
Debra Nuchols testified that she was an investigator in the family crimes unit of the Knoxville Police Department. She arrived at East Tennessee Children's Hospital around 4:30 or 4:45 a.m. on July 19th after receiving a call of suspected child abuse. Investigator Nuchols went to the victim's hospital room in the Intensive Care Unit ("ICU"), and she observed several "bruises or marks" visible on the victim's face. Shortly after she arrived, she contacted the crime lab to take photographs of the ...