Court of Criminal Appeals of Tennessee, Knoxville
Session Date January 22, 2015
Appeal from the Criminal Court for Campbell County No. 10567 Ben H. Cantrell, Senior Judge
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Deshea Dulany Faughn, Senior Counsel; Lori Phillips-Jones, District Attorney General; and Michael Olin Ripley, Assistant District Attorney General, for the appellant, State of Tennessee.
Jessica Van Dyke, Nashville, Tennessee, for the appellee, Curtis Cecil Wayne Bolton.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
The record of the Petitioner's conviction proceedings, which was made part of the post-conviction record, reflects that the Petitioner's son died at the University of Tennessee Medical Center on November 23, 1995, from blunt force head trauma. The victim had other injuries, as well, and the medical evidence showed that the victim's injuries were non-accidental. The Petitioner and his girlfriend, Lisa Boyer, were charged with first degree premeditated murder and were tried jointly. Ms. Boyer testified for the State at the trial.
The evidence showed that Ms. Boyer and the Petitioner lived together. They had a four-week-old daughter, and Ms. Boyer was still recovering physically from a difficult delivery. The victim lived in the home, and although he was not Ms. Boyer's child, she cared for him during the day when the Petitioner worked. Ms. Boyer was 5'1" and weighed ninety-five pounds. The Petitioner was 5'8" and weighed 148 pounds.
Police officers testified about the Petitioner's and Ms. Boyer's pretrial statements. An officer who went to the home within hours of the injured victim's arrival at the hospital testified that Ms. Boyer stated the victim fell out of a highchair. Ms. Boyer told the officer that earlier in the evening, the Petitioner had gone to the emergency room because he had injured his finger at work earlier in the day. The victim cried when the Petitioner left the house, and Ms. Boyer got him up to feed him around 11:30 p.m. She put him in his highchair, went to another room to wash the highchair's tray, and heard a loud bang. She found the victim on the floor, and he had a bruise on his temple and was not breathing. She slapped him three times, with the third slap being hard, and he resumed breathing. She called the emergency room and told the Petitioner to come home. The Petitioner returned to the house and took the victim to the emergency room. Ms. Boyer told the officer the victim had not been injured when the Petitioner left the first time to go to the emergency room.
The sheriff testified that the Petitioner was questioned at the sheriff's office and explained that the bandage on his finger was from a work-related injury. The Petitioner said he aggravated this injury when he swatted the victim's bottom because the victim would not listen.
A neighbor testified that on the night before the victim's death, she heard thumps coming from the Petitioner and Ms. Boyer's trailer about thirty minutes after she went to bed around 8:30 or 9:00 p.m. She had looked outside and had seen a man and woman running back and forth in the hall of the Petitioner and Ms. Boyer's trailer.
When called as a State's witness, Ms. Boyer testified that the Petitioner was not a good father, did not work regularly, did not buy groceries for his family, and did not contribute to the household financially other than by paying rent. She said she received governmental assistance.
Regarding the events of November 22, 1995, Ms. Boyer testified that the victim had been weak, had fever, and had a poor appetite for a few days. Although three doctor's appointments were made for the victim, the Petitioner had cancelled them and would not allow her to take the victim to the doctor. She said the Petitioner came home from work around 6:30 p.m. with an injured finger. The Petitioner left to run errands, and during his absence, Ms. Boyer started to give the victim a bath and noticed he had "massive" bruises on his chest. When the Petitioner returned, he went into another room to change the victim's clothes and talked by telephone with his sister behind a closed door. Ms. Boyer said that the victim did not want to eat dinner and gagged on his juice. She said that the Petitioner took the victim from his highchair and spanked him repeatedly and that she finally told the Petitioner to leave the victim alone. She said that the Petitioner continued spanking the victim as he walked the victim to the victim's bedroom. She said that the Petitioner hit the victim so hard that the victim started to fall and that the Petitioner grabbed the victim by his collar and carried him into the bedroom. She walked past the bedroom and saw the Petitioner pointing at the victim and talking to him. She heard a loud thump from the bedroom. When she went into the bedroom, the Petitioner was holding the victim by his ankle and wrist. The Petitioner threw the victim into the wall above the victim's bed. The victim fell face-forward to the bed and was limp. Ms. Boyer said the Petitioner forcefully spanked the victim's bottom. She said she screamed at the Petitioner that he had done enough. She said the Petitioner left the bedroom and stated, "I warped him so hard, I can't believe he's not crying, I warped him so hard I hurt my hand."
Ms. Boyer testified that she told the Petitioner to go to the hospital. She tried to get the victim out of bed to feed him, but he was unresponsive. She helped him out of bed and noticed that he walked with his legs crossed, that he slouched, and that he scooted. She said the victim moaned when she told him to get into his highchair. She tried to pick up the victim, but she stumbled because she was also holding her daughter, causing the victim's head to bump the wall. She gave the victim some food and noticed he stared straight ahead and had dilated pupils. She said he started to slide back and down in the highchair. She went to the bathroom to get the highchair tray and heard a thump. When she returned to the kitchen, the victim was on the floor. She said the victim was not breathing and did not have a pulse. She splashed cold water on him and slapped him lightly twice and hard once, and he began breathing. She noticed large bruises on the victim's face. She called the emergency room and spoke with the Petitioner, who told her not to call an ambulance because he would be home in a few minutes.
Ms. Boyer testified that she did not tell the police about the Petitioner's actions when an officer came to the house around 3:00 a.m. on November 23 because she was afraid of the Petitioner. She said she told a detective about the Petitioner's actions on November 23 around 4:55 p.m. She acknowledged she gave the statement implicating the Petitioner after she had been arrested and jailed for first degree murder.
The Petitioner testified that he injured his hand at work on November 22. He said that when he went home after work, Ms. Boyer told him the victim had fever earlier in the day. He said the victim looked as if he did not feel well and was not responsive. The Petitioner said he bathed the victim and left to run errands. He returned home and noticed the victim did not eat dinner but drank juice. The Petitioner said he watched television with the victim until he left around 10:30 p.m. to go to the emergency room. He said he put the victim to bed before leaving.
The Petitioner testified that while he was at the emergency room, Ms. Boyer called and said the victim had fallen from the highchair. He said that he went home and that it never occurred to him to get an ambulance. He went home and found the victim face-down on the bed. He said the victim was pale, limp, helpless, and had dilated pupils. He took the victim to the emergency room.
The Petitioner said his discipline methods included a slight swat or a smack to the victim's hand. He denied throwing the victim into a wall and said he did not swat the victim's bottom on November 22. He said he and Ms. Boyer agreed that he would discipline the victim and that she would not.
On cross-examination, the Petitioner admitted that despite his earning $4780 in a four-month period, he filed an application for governmental assistance that stated his income was $480 per month. He acknowledged that he had called two or three times to check on his daughter, who had been in Department of Human Services' custody for a year, and that he had not called to check on his daughter at all in the past several months. Ms. Boyer's mother's boyfriend testified that in contrast, Ms. Boyer called almost nightly to check on the child and that Ms. Boyer visited the child as often as she was allowed. See State v. Curtis Cecil Wayne Bolton, No. 03C01-9707-CR-00255, 1999 WL 93107, at *1-12 (Tenn. Crim. App. Feb. 25, 1999), perm. app. denied (Tenn. Sept. 13, 1999).
The record of the trial proceedings reflects that at the end of the State's proof and immediately after Ms. Boyer testified, the prosecutor made the following announcement:
If it please the Court and the members of the jury, the State of Tennessee rests. At the conclusion of our proof, we elect pursuant to Section 39-11-401 of the Tennessee Code that the defendant, Curtis Bolton, based on this proof is criminally responsible as the party who committed the offense and we further elect, Your Honor, pursuant to section 39-11-402, that Lisa Boyer is also criminally responsible for the conduct of another, as an aider and assister [sic].
The record of the trial proceedings also reflects that the jury acquitted Ms. Boyer and convicted the Petitioner.
In the appeal of the conviction, the Petitioner raised issues related to the sufficiency of the evidence to support the conviction, a juror's failure to reveal he had been a college roommate of an assistant district attorney general, cross-examination of the Petitioner by Ms. Boyer's attorney about the Petitioner's previous convictions and charges for passing worthless checks, admission of a diagram of the victim's body and the medical examiner's references to photographs that were not admitted, and the prosecutor's use of Biblical references during closing argument. This court denied relief. See id. at *13-19.
The Petitioner filed a pro se petition for post-conviction relief. For reasons that are not explained in the record, the Petitioner's post-conviction case remained pending in the lower court for over a decade before the hearing. The record reflects that the Petitioner had a succession of appointed attorneys and that special judges were appointed. Some of the delay was attributable to disputes between the Petitioner and his appointed attorneys.
At the post-conviction hearing, the Petitioner testified that before the trial, he received a plea offer that involved a twelve-year sentence. He said trial counsel advised him of the offer at a meeting at which the Petitioner's mother and sister-in-law were present. He did not recall the conviction offense proposed by the plea offer, and although he did not recall the range classification of the offer, he assumed it was 100% because he was told it involved twelve years "to serve." He said that in the meeting, counsel advised him that if he were convicted of first degree murder at a trial, he would receive a life sentence but would be eligible for a parole hearing after serving twenty-five years. He said he was told that if he kept his "nose clean, " he had "a pretty good shot of getting out at 25 years." He said he weighed the options of accepting a plea offer versus going to trial in light of the difference between a twelve-year sentence and parole eligibility after twenty-five years. He said that considering the "small difference" between the two, he wanted to "go to bat" for the victim. He said that he "[m]ost certainly" would have accepted the offer and would not have gone to bat for the victim if he had known he faced the possibility of serving fifty-one years in prison if convicted at a trial. He said he did not learn that he would have to serve fifty-one years until a few months after the conviction and his transfer to the Department of Correction. He acknowledged that in the meeting about the offer, his mother said the Petitioner was not going to accept the offer. He said that she helped but did not make the final decision. The Petitioner said it was up to him to make the decision and that he was asked "point blank" for his decision. He said he understood that he could accept an offer without admitting guilt.
The Petitioner testified that he and trial counsel did not discuss the prospective jurors. He said he would have been concerned if he had known about a juror and an assistant district attorney general having been college roommates. He said he did not learn of this information until after the trial.
The Petitioner testified that he and trial counsel did not discuss a severance of his case from Ms. Boyer's case before or during the trial. He said he never heard the words "severance" or "motion to sever" until after the trial. He said that Ms. Boyer and the State pursued the same theory at the trial and that if Ms. Boyer's testimony were believed, he would be convicted. He said he and counsel did not discuss the use of medical experts or consultants. He did not recall if they discussed how Dr. Blake would testify.
The Petitioner testified that he did not kill the victim, that he had always said he did not, and that he did not know what happened to the victim. He agreed that his theory was that Ms. Boyer had to have been the person who injured the victim. He acknowledged that his testimony did not go well and that he had difficulty with cross-examination. He said this was not trial counsel's fault.
Attorney Thomas Dillard, an expert in trial practice, testified that in July 1993, the sentencing law for first degree murder was changed to provide that a life sentence was a sixty-year sentence, requiring a defendant to serve 60%, or 36 years, before being released. He said that in addition, a defendant could earn 15% sentence credits that could reduce the sentence to twenty-five years' service. He said that a person who did not have sufficient sentence credits to be released might still be paroled. He said that effective July 1, 1995, the law was amended to eliminate parole for first degree murder. He said the percentage of service was increased to 100% of sixty years, although a defendant could still earn up to 15% sentence credits, which could result in release after fifty-one years. He said the provisions providing for parole and the possibility of release after service of twenty-five years were eliminated.
In Mr. Dillard's opinion, failure to advise a client of the maximum sentence the client faced if convicted at a trial was ineffective assistance of counsel. He said this was particularly the case if the client received a plea offer. He said he would not advise a client to plead guilty if the client insisted he was not. He said, though, that defense counsel had a duty to advise a client of all plea offers without regard to the client's interest in an offer. He said defense counsel likewise had a duty to advise a client accurately about the possible sentence and its effect.
Mr. Dillard testified that his practice under the prior first degree murder sentencing law was to advise clients that parole was difficult to obtain and that the victim's relatives would oppose parole. He agreed he told clients that despite the possibility of parole, they would likely spend most of their lives in prison and might never receive parole.
Mr. Dillard testified that he had never seen a criminal case in which a codefendant testified for the State in a joint trial. He said that as a defense attorney, if he became aware before the trial of a situation in which this would occur or if he learned it would occur from the opening statements, he would move for a severance. He said that if his client's codefendant testified for the State, he would move for a mistrial, even if he knew the trial court would deny it. He acknowledged that he would not have a basis for objecting to a codefendant's testifying for the State. He said that a situation in which two defendants were on trial together and one testified for the State was extremely prejudicial to the defendant who did not testify for the State. He said that in cross-examining a testifying codefendant, it was important to impeach the codefendant's testimony by showing bias or prejudice, offers from the State, and any other relevant matters.
Gregory Davis, M.D., an expert in forensic pathology, testified he reviewed the victim's autopsy report and the trial testimony of Doctors Blake and Clawson, who testified for the State. He said he agreed to work on the Petitioner's post-conviction case pro bono because he thought Dr. Blake's autopsy report contained conjecture outside the bounds of knowledge in forensic pathology that needed to be addressed.
Dr. Davis testified that he agreed with Dr. Blake's determinations that the cause of death was blunt force head trauma and that the manner of death was homicide. He said, though, that he questioned Dr. Blake's opinions about the ages of some of the victim's contusions. He said that according to current medical knowledge, determining the age of a bruise was problematic. He said that people bruise and heal at different rates and that it was difficult to determine the ages of bruises, except that an expert might determine that injuries leading to multiple bruises did not occur at the same time.
Regarding Dr. Blake's testimony that "at least an hour or so could have passed" between the victim's sustaining a head injury and the appearance of symptoms, Dr. Davis testified that Dr. Blake's opinion was not scientifically substantiated and was speculative. He said it was impossible to pinpoint the time of the victim's head injury. Dr. Davis disagreed with Dr. Blake's testimony that the victim's injury did not occur suddenly from a massive brain bleed and that had that occurred, the victim would have died by the time he was seen at the emergency room. He said that no guideline existed regarding the amount of time a child might live after a massive brain bleed and noted that some children lived for days in the pediatric intensive care unit. Dr. Davis did not think any pathologist could determine exactly when the victim's injuries occurred before the victim came to the emergency room.
Dr. Davis agreed with Dr. Blake's assessment that the victim's unconscious state and fixed and dilated pupils when the victim presented at the emergency room were early signs of brain damage. He agreed with Dr. Blake's testimony that the victim was comatose due to building pressure in the victim's head.
Dr. Davis testified that although he would not say it was impossible for a highchair fall to cause the victim's fatal injuries, he thought it was highly unlikely. He thought Dr. Blake's testimony that the victim's injuries were sustained from an amount of force equivalent to a fall from one to two stories was "dramatic" and said that analogies of this nature had fallen out of favor in the past decade, although they had been used by pathologists in the 1990s when the Petitioner's trial took place. He said a toddler who fell from standing on a podium and hit his head had a good chance of dying. Regarding Dr. Blake's testimony about the ages of the victim's bruises, Dr. Davis said that even in the 1990s, he was uncomfortable providing opinions of this nature.
Regarding Dr. Blake's testimony that the victim's injuries were consistent with having been thrown against a wall more than once, Dr. Davis testified that had he been called as a witness, he would have been able to testify that the injuries were consistent with a number of other things. He thought Dr. Blake alluded to the possibility of the injuries occurring in another scenario.
Dr. Davis testified that had he been called as a witness at the Petitioner's trial, he would have been able to state the same opinions as those expressed in his post-conviction hearing testimony. He said that in several cases in which he served as an expert witness, he had been allowed to remain in the courtroom and evaluate other medical testimony. He said he had helped attorneys formulate cross-examination questions.
Dr. Davis testified that overall, he agreed with most of Dr. Blake's testimony. With respect to his disagreements, he did not think Dr. Blake testified falsely or was misleading. He said pathologists might look at the evidence objectively but disagree on its interpretation.
Dr. Davis testified that no evidence pointed to a conclusion that the victim's injuries were inflicted by a 5'8", 150 pound man. He said that likewise, no evidence excluded the possibility that they were inflicted by a petite woman. He said that he would have been able to testify that it was possible a petite woman could have thrown the victim into the wall with sufficient force to cause the injuries.
Jessie Stalnaker testified that she had been married to the Petitioner's brother, who passed away in 2007. Regarding the Petitioner's pretrial proceedings, she recalled conversations at home and at trial counsel's office about whether the Petitioner would accept the State's plea offer. She said she went with the Petitioner and the Petitioner's mother to meet with counsel about the offer. She thought counsel's assistant was also present at the meeting. She said counsel stated that the offer was for twelve years "to serve." She did not recall the offense to which the offer required the Petitioner to plead guilty. She said the Petitioner's mother was not pleased with the offer and told the Petitioner he was not going to accept the offer. Ms. Stalnaker said the Petitioner's mother asked counsel what the Petitioner "was looking at." She said counsel stated that the Petitioner faced a life sentence and would be eligible for parole after serving twenty-five years. Ms. Stalnaker said the Petitioner's mother did most of the talking in the meeting. She did not recall the Petitioner's saying much.
Ms. Stalnaker testified that she recalled the details regarding parole eligibility because it was discussed frequently for several days. She said that after the meeting, the Petitioner's father calculated that the Petitioner would be eligible for parole at age fifty. She said she found out one or two days after the Petitioner's conviction that trial counsel's advice about parole eligibility was incorrect. She said she was at the Petitioner's parents' house and learned the correct sentencing information from her son, who was employed by the district attorney general. She said the Petitioner also learned the correct information, although she did not know when. She said it was not years after the conviction. She said that she had always believed the victim's death was accidental and that the Petitioner had always denied killing the victim.
Trial counsel testified that he was employed previously as an assistant public defender and that he represented the Petitioner in the conviction proceedings. He said that he had not been able to review the public defender's file regarding the case because it could not be located but that he had reviewed the transcript of the trial.
Trial counsel testified that, after the trial, he learned of a juror's connection with one of the assistant district attorneys general. He said that he raised the issue in the motion for a new trial and that the juror and the assistant district attorney general testified at the hearing. He did not recall anything significant about the juror during jury selection. He said his habit was to discuss prospective jurors with his clients. He did not recall if after the trial, he and the Petitioner discussed the Petitioner's thoughts about the connection between the juror and the assistant district attorney general.
Trial counsel testified that he did not obtain a medical expert to review the evidence. He acknowledged he had no medical training or experience. He said he had never conducted a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), regarding the admissibility of scientific expert evidence. He did not recall whether he reviewed any medical literature provided by Doctors Blake and Clawson but said he would have if it was provided. He said that he met with Dr. Blake before the trial and that Dr. Blake answered his questions. He said that based upon the pretrial interview, he was not surprised by Dr. Blake's testimony.
Regarding preparing the Petitioner for the trial, trial counsel testified that he and the public defender's investigator questioned and cross-examined the Petitioner in the courtroom and familiarized him with the courtroom process. Although he could not specifically recall reviewing the Petitioner's pretrial statements with him, he was sure he did. He said he also talked to the Petitioner at counsel's office.
Trial counsel testified that the defense theory was that the Petitioner was not home when the victim was injured and therefore could not have inflicted the injuries and that the Petitioner loved the victim. He said they tried to show that the Petitioner hurt his finger at work, went home, talked to Ms. Boyer, went to the hospital, received a call that the victim had fallen, went home, and took the victim to the hospital. He said that he had reviewed the defense strategy with the Petitioner but that ultimately, the jury did not accept it. He did not recall whether he knew going into the trial that food stamps, AFDC, and WIC would be mentioned repeatedly.
Trial counsel acknowledged a letter to the district attorney general as bearing his signature, although he had no independent recollection of the letter. The letter requested the district attorney general's assistance in correcting the Department of Correction's incorrect classification of the Petitioner's sentence as life without parole.
Regarding his recollection of when he learned Ms. Boyer would testify for the State, trial counsel said that he had been trying to remember and that "the only thing I can come up with is during the trial." He said he thought the Petitioner's and Ms. Boyer's defenses were "on the same page as we went into this trial and then she testified." He said he cross-examined Ms. Boyer about the timing of her release from jail when she changed her story. Although he did not recall the specifics of his conversations with Ms. Boyer's attorney, he said he had the impression Ms. Boyer would support the Petitioner's theory that the victim was injured in a highchair fall when the Petitioner was not home. He agreed that Ms. Boyer testified that the Petitioner was not home when the victim fell from the highchair but that she said the Petitioner ...