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Pegues v. State

Court of Criminal Appeals of Tennessee, Jackson

August 17, 2017


          Assigned on Briefs June 6, 2017

         Appeal from the Criminal Court for Shelby County No. 12-06111 J. Robert Carter, Jr., Judge

         A Shelby County jury convicted the Petitioner, Sebastian Pegues, of two counts of first degree felony murder, one count of aggravated child abuse, and one count of aggravated child neglect, and the trial court sentenced him to life plus twenty years of incarceration. This court affirmed the Petitioner's convictions and sentence on appeal. State v. Sebastian Pegues, No. W2014-00854-CCA-R3-CD, 2015 WL 3404736, at *1 (Tenn. Crim. App., at Jackson, May 27, 2015), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel because his trial counsel ineffectively cross-examined the medical examiner. After a hearing, the post-conviction court denied relief. We affirm the post-conviction court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Samuel J. Muldavin, Memphis, Tennessee, for the appellant, Sebastian Pegues.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie S. Bush, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.



         I. Facts

         A. Trial

         This case arises from the death of the Petitioner's then three-month-old stepdaughter. We summarize the facts presented at the Petitioner's trial. On June 25, 2012, the Petitioner called 911 to report that he needed an ambulance for his infant daughter who was breathing slowly. He expressed fear that the infant was going to die. The 911 operator instructed the Petitioner on how to conduct CPR, and the Petitioner did so until paramedics arrived.

          When paramedics arrived, the Petitioner informed them that his daughter, the victim, was having trouble breathing. The Petitioner said that the victim had been sick, had taken medication, and was not breathing well. A Paramedic noted that the victim was "definitely . . . in distress." He said that he immediately noticed that the victim was "very depressed like lethargic." He stated that the victim had a "fixed" look on her face and was not breathing at a normal rate for a baby. The Petitioner reported he had given the victim a small dose of Tylenol. The ambulance arrived quickly to transport the victim, who was breathing but "deteriorating, " to the hospital. The victim's heart stopped on the way to the hospital but paramedics revived her.

         Officers responding to the scene found the Petitioner, the victim, and a seven or eight-year-old girl. The Petitioner told officers that he was trying to sleep and that the victim would not stop crying. He called Ms. Pegues, the victim's mother, who told him to give the victim some Tylenol to help her sleep. The Petitioner told the officers that the victim was having difficulty breathing and that he had given her medication. Officers noted that the other child in the house, K.H., who was seven or eight years old, was concerned about the victim. K.H. told officers that the victim cried a lot, and it frustrated the Petitioner. K.H. said "something about a who[p]ping."

         The Deputy Chief Medical Examiner for Shelby County, Dr. Marco Ross, testified as an expert in forensic pathology about his findings during the victim's autopsy.

         [The victim] weighed sixteen pounds and was three months old at the time of the autopsy.

In his examination of the victim's body, Dr. Ross found a bruise on her right temple consistent with blunt force trauma to that area. On the back of the victim's head, Dr. Ross found a hemorrhage, which he explained as an area of bleeding in the tissue. He testified that there was a similar area of hemorrhage on the right front part of the victim's scalp. Dr. Ross said that, after removing part of the victim's skull, he found a small area of hemorrhage on the right side of the victim's brain. Dr. Ross identified pictures of those injuries, and they were admitted as evidence. He stated that all of the victim's injuries to her head appeared to be acute injuries, meaning that they occurred within twenty-four hours before her death. Dr. Ross testified that it would have taken a minimum of two blows to the victim's head to create those injuries.
Dr. Ross identified pictures of areas of bruising on the victim's torso region, specifically her lower chest and upper part of her abdomen. Dr. Ross testified that he found injuries on the victim's ribs. The victim's fifth through ninth ribs were fractured on her right side, and her third through eighth ribs were fractured on her left side. The eighth and ninth ribs on her backside, where they attach to the spine, had "calluses" indicative of older fractures to those ribs. He testified that the injuries to the ribs on her right side also appeared to be acute. The injuries to her left side were a minimum of two weeks old. Pictures of the injuries to the victim's ribs were identified and admitted as evidence.
Dr. Ross testified that he could not completely rule out that the victim's rib injuries were caused by CPR, but he stated that his interpretation of the injuries was more consistent with tpressure or impact from the side of the body, rather than the front, which would be consistent with CPR. He agreed that the injuries were more consistent with injuries sustained from blunt force trauma. He testified that there were hemorrhages in the immediate vicinity of the fractured ribs consistent with blunt force trauma. Based on the fracture lines on the victim's ribs, Dr. Ross testified that the victim had suffered broken ribs during three different events.
Dr. Ross testified that the victim had suffered bleeding in her right lung, as well as in her heart. Pictures of the bleeding in the victim's lung and heart were identified and admitted as evidence into the record. The presence of the hemorrhage inside the victim's lung indicated that the victim had suffered blunt force trauma rather than injuries sustained during CPR. Dr. Ross testified that the victim had two lacerations on her liver, which he described as "complex, " indicative of a "crush type of injury to the liver." Dr. Ross agreed that it would take a "significant amount of force" to cause this type of injury to the liver. He characterized the injuries to the victim's liver as severe, caused by a very significant impact.
Dr. Ross testified that the victim also suffered hemorrhaging to her duodenum, the connection between her stomach and small intestine, as well as to her pancreas and kidney. He testified that the victim's adrenal gland was split open by a large laceration consistent with a severe injury. He agreed that an adult punching the victim would cause that type of laceration. Dr. Ross testified that, due to her internal injuries, the victim had bled at least half of her blood volume internally.
Dr. Ross testified that he determined the cause of the victim's death to be multiple blunt force injuries. He stated that the victim's injuries were very severe and "associated with a high mortality." He testified that he typically associated these types of injuries with car accidents because of the amount of force necessary to cause the same crushing of the liver suffered by the victim. He stated that, had the victim been resuscitated, she probably would have had to have her liver removed to stop the internal bleeding. He described the injury to her liver as "very, very severe" and stated that the victim would have been in severe pain after sustaining these injuries. Dr. Ross stated that the victim likely went into shock within a matter of minutes after sustaining the injury to her liver. Based on the severity of the injuries, Dr. Ross stated that the victim probably suffered them close to the time that she died.
On cross-examination, Dr. Ross agreed that the victim arrived at his office with medical equipment on her body, left in place so that he could ascertain whether any of her injuries or marks were related to the medical equipment. He clarified that the temple, where the victim had a bruise, was on the side of the head between the eye and the ear. He agreed that, near the injury to her temple, the victim had a mark where tape had been placed on her head by medical personnel. He stated that the tape and any piece of medical equipment that had been taped to her head would not have caused her injury. Dr. Ross stated that the injuries to the child's liver and abdomen would have been by someone forcefully squeezing her abdomen, or punching ...

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