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Calloway v. State

Court of Criminal Appeals of Tennessee, Nashville

September 1, 2017

VERNICA SHABREE CALLOWAY, AKA VERNICA S. WARD, AKA VERNICA JACKSON
v.
STATE OF TENNESSEE

          Assigned on Briefs August 8, 2017

         Appeal from the Criminal Court for Davidson County No. 2007-C-2178 Cheryl A. Blackburn, Judge

         The petitioner, Vernica Shabree Calloway, a.k.a. Vernica S. Ward, a.k.a. Vernica Jackson, appeals the denial of her post-conviction petition, arguing trial counsels' strategy regarding the use of expert witnesses on behalf of her defense was ineffective. Following our review, we affirm the denial of the petition.

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

          Kara L. Everett, Carthage, Tennessee, for the appellant, Vernica Shabree Ward.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; Glenn Funk, District Attorney General; and Katrin Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         A. Trial Proceedings and Direct Appeal

         The petitioner was convicted by a Davidson County Criminal Court jury of aggravated child neglect and reckless aggravated assault, for which she received an effective sentence of twenty-five years imprisonment. This Court affirmed her convictions on direct appeal, and our Supreme Court denied her application for permission to appeal. State v. Vernica Shabree Calloway, M2011-00211-CCA-R3-CD, 2014 WL 1394653, at *1 (Tenn. Crim. App. Apr. 4, 2014), perm. app. denied (Tenn. Sept. 25, 2014). On direct appeal, this Court recited the following underlying facts and procedural history:

This case[] arises out of the [petitioner]'s having given birth at home on a toilet on October 31, 2006. The [petitioner] took her newborn daughter to a hospital several hours later, and the child survived but suffered permanent brain damage as a result of "hypoxia, " or a lack of sufficient oxygen, which occurred sometime around birth. In August 2007, the [petitioner] was indicted for the aggravated child neglect, aggravated child abuse, and attempted first degree murder of the victim. The attempted murder charge was dismissed prior to trial, however.

         The [petitioner] was first tried and convicted of the second degree murder of her daughter, Stephanie Ward. State v. Ward, 138 S.W.3d 245, 250 (Tenn. Crim. App. 2003). Because Stephanie was the third child in the [petitioner]'s care to die of unexplained causes, the State's expert medical witnesses in that case relied on the "'rule of three, ' i.e. the first unexplained child death in the presence of a sole caregiver can be classified as SIDS [Sudden Infant Death Syndrome], with the second such death classified as undetermined, and the third and subsequent deaths result in all of the deaths being classified as homicides by asphyxiation, " in concluding that Stephanie's death was a homicide by asphyxiation. Id. at 270-71. This court reversed the conviction and remanded for a new trial due to the medical experts' reliance on the "rule of three" in reaching their determinations, even though the experts did not refer to it as such, concluding that neither the "rule of three" nor the concept behind the rule was a proper foundation under the standards set forth in McDaniel v. CSX Transp. Inc., 955 S.W.2d 257, 265 (Tenn. 1997), for expert opinion testimony. Ward, 138 S.W.3d at 271.

         In the case at bar, both the [petitioner] and the State filed numerous pretrial motions, including a motion by the State "to use evidence of [the] [petitioner]'s prior conduct in support of expert witness testimony pursuant to Tenn. Rules Evid. 702-705." Specifically, the State sought to be allowed to provide information to medical experts "detailing evidence of the [petitioner]'s past conduct of smothering three children to death and evidence of the [petitioner]'s claims that Stephanie and Stephen Ward had episodes in which they stopped breathing before their death[s]." The State also sought permission to provide their medical experts with evidence that the [petitioner] had given birth to two other children who had been removed from her care and who had not suffered any episodes of breathing difficulties. The State asserted that such information was "foundational evidence to enable" their experts "to form reliable opinions as to the specific cause of [the victim's] asphyxial trauma" and to "formulate reliable opinions on whether the cause for [the victim's] injuries are the result of non-accidental trauma or resulted from some alternative cause."

         The State, therefore, requested that, in addition to evidence of the [petitioner]'s involvement in the deaths of the three other children, it be allowed to introduce at trial a number of other pieces of evidence, including evidence that DCS had previously removed two other children from the [petitioner]'s care during the pendency of the criminal proceedings against her based on the deaths of the three children; evidence that the [petitioner] had violated various conditions of her bond; evidence that the [petitioner] concealed her pregnancy during a September 5, 2006 court appearance; evidence of the [petitioner]'s efforts to conceal her pregnancy from her co-workers, employers, and various medical professionals; evidence that the [petitioner] repeatedly provided false information about her pregnancy history; and evidence that the [petitioner] refused to provide the names of her previous children to DCS employee Cheryl Gooch. The State argued that such evidence "provide[d] a conceptual framework for understanding the [petitioner]'s conduct in regards to the pregnancy and birth of [the victim]" and was "relevant to establish the motives behind the [petitioner]'s efforts to conceal her pregnancy with [the victim], her motivations in failing to pursue appropriate prenatal care, her refusal to give birth at a hospital and her actions in concealing the delivery of [the victim] before she went to [the hospital]." The State further argued that the "other acts" evidence, which included the [petitioner]'s "entire course of conduct, " was "necessary to sustain the willingness of jurors to draw the inferences necessary to reach an honest verdict, and that the exclusion of parts of this evidence would create an incomplete picture of the offenses, the relationship of the parties, and a conceptual and chronological void that would like[ly] lead to an incorrect assessment of the evidence involving the indicted acts."

         January 9, 2008 Pretrial Hearing

         Lorraine Pipkins testified that she and the [petitioner] had been co-workers and that the [petitioner] lived with her at her apartment in Nashville for about a month before the instant offense. The [petitioner] left Pipkins' apartment the night of October 31, 2006, and did not return until about a week later to collect some clothes. At that time, the [petitioner] told Pipkins that she was going to the hospital, but Pipkins did not know that the [petitioner]'s child was in the hospital.

         The [petitioner] brought up the names of three deceased children, Stephen Ward, Stephanie Ward, and Alexis Humphreys, in the interview and made statements about them. She talked at length about how it bothered her that people thought she was guilty of killing those children. Detective Bruner said that the [petitioner] was not in custody at the time of the interview, which lasted three hours and twelve minutes. She acknowledged that she did not ask the [petitioner] if she wished to have an attorney present for the interview or if she was presently represented by counsel for matters pertaining to those children. Detective Bruner learned that the [petitioner] had also used the last names of Ward and Jackson in the past and had a criminal record under the name of Ward.

April 21, 2008 Pretrial Hearing

         Dr. Robert Reece, a pediatrician and the director of the child protection programs at Tufts Medical Center in Boston, Massachusetts, testified his area of specialization was child abuse pediatrics and he had authored a chapter about the distinction between fatal child abuse and SIDS in the textbook, Child Abuse Medical Diagnosis and Management. He said he was the executive editor of The Quarterly Update, a review journal that "reviews articles that have to do with child abuse or things that could be confused with child abuse as well as dealing with professional issues in the field of child abuse and neglect." Dr. Reece frequently taught at conferences on subjects dealing with child abuse, including differentiating between children who suffer injuries from a suffocation method versus an accidental method. He had been qualified as an expert in the field of pediatrics and child maltreatment in ten or twelve other jurisdictions and was accepted by the trial court as an expert in that field.

         Dr. Reece acknowledged that he had not received or evaluated any of the victim's medical records, social services history, or police reports but knew that the victim had been brought to the emergency room with a hypoxic and ischemic injury resulting in the death of brain tissue as revealed by an MRI. He said that the victim's brain wave test was abnormal, indicating a cerebral injury. Dr. Reece said that, in order for him to determine the cause of the victim's hypoxic injury, he would need to know the circumstances surrounding the victim's birth, including information about the mother's health during pregnancy, how many prior pregnancies she had experienced, the length of labor, previous labors the mother may have had, whether the victim cried at the time of delivery, and whether the victim's birth had produced apnea or hypoxia. He noted that it would also be important to know the mother's pattern of behavior toward other children, whether the victim was a wanted baby and whether "this was something that would give some kind of motive to dispose of the baby." He said that inconsistent histories were "always worrisome . . . when we're trying to establish between a legitimate medical condition and something that has been produced by abuse." Medical histories for other children born to the victim's mother would also be important in formulating an opinion as to the cause of the victim's injury because there were "so many question marks around the birth of [the victim]. The previous history of other children having suffered other kinds of problems would make one lean further in the direction of saying that this is an unsafe home." Dr. Reece explained that the term "apparent life threatening events" are events that "would make one believe that a serious and possibly fatal outcome could be expected if intervention is not attempted." He said it was important to know if there was a history of similar events involving the victim's siblings and other children in the care of the [petitioner].

         Dr. Reece agreed that if a woman became pregnant, did not seek an abortion in a timely fashion, did not want the child, did not tell anyone that she was pregnant, and no one realized that she was pregnant, it would not be difficult for her to physically asphyxiate the child and cause the child's death. Because the [petitioner] related that the victim cried immediately after birth, as well as on the way to the hospital, Dr. Reece opined that the victim did not have any signs of a hypoxic injury during birth but agreed that his conclusion rested upon the reliability and accuracy of the [petitioner]'s account of the birth.

         On redirect examination, Dr. Reece agreed that it was very difficult to differentiate between deaths caused by SIDS and suffocation.

June 4, 2010 Pretrial Hearing

         Cheryl Gooch, a former DCS employee, testified that she was assigned to investigate the victim's case and that she interviewed the [petitioner] prior to the [petitioner]'s November 16, 2006 interview with Detective Bruner. During Gooch's interview, the [petitioner] refused to provide the names of her other children despite Gooch's asking her several times. Gooch then advised her supervisor, Virginia Thomas, about the [petitioner]'s refusal to provide the names of her other children.

         With respect to the State's request to provide information to its medical experts, the trial court ruled that the State could give "limited information" to their expert witnesses regarding the victim's siblings' deaths, i.e. that the cause of death should be disclosed but that the manner of death should be listed only as "undetermined." The court specifically ruled that the experts should not be informed that the deaths of any of the [petitioner]'s other children might have resulted from homicide, finding that it would be "too prejudicial" and could potentially "slant" the opinion of the experts. Further, the trial court ruled that the State could provide their experts with information about the [petitioner]'s pregnancy with the victim, the number of prior pregnancies the [petitioner] had experienced, her previous labors, the length of her labor, her health during pregnancy, the victim's medical records, medical histories of the [petitioner]'s other children including cause of death without indicating manner of death as anything other than undetermined, and any statements the [petitioner] made to law enforcement or medical personnel regarding her pregnancy with the victim and the birth of the victim or the births of her other children.

June 7-10, 2010 Trial

         Lorraine Pipkins testified that she met the [petitioner] while they were both employed at the Wendy's restaurant on Murfreesboro Road. After the two became "close, " the [petitioner] told Pipkins that she was pregnant, but, on February 10, 2006, the [petitioner] informed Pipkins that her mother "told her that she had . . . lost the baby, she wasn't no longer pregnant." During the late summer of 2006, Pipkins and the [petitioner] had started working together at a Mrs. Grissom's restaurant. While Pipkins and the [petitioner] were at work one day, Pipkins overheard "a little old lady" ask the [petitioner] if she was pregnant. The ...


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