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Okraku v. State

Court of Criminal Appeals of Tennessee, Nashville

September 12, 2017

KWAKU ARYEL OKRAKU
v.
STATE OF TENNESSEE

          Assigned on Briefs August 15, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2009-A-769 Steve R. Dozier, Judge

         Kwaku Aryel Okraku, the Petitioner, was convicted of two counts of aggravated child neglect and one count of reckless homicide. He received an effective sentence of sixty years. Trial counsel did not file a timely motion for new trial or notice of appeal, and after filing a petition for post-conviction relief, the Petitioner was granted a delayed direct appeal. On direct appeal, this court merged the aggravated child neglect convictions but otherwise affirmed the Petitioner's convictions. The Petitioner then renewed his petition for post-conviction relief and alleged that trial counsel's performance was deficient because he "neglected to use the strongest piece of impeachment evidence available to him-evidence that could have discredited the State's theory that the cocaine ingested by the victim belonged to [the Petitioner]." After a thorough review of the facts and applicable case law, we affirm the post-conviction court's denial of relief.

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

          Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Kwaku Aryel Okraku.

          Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Glenn Funk, District Attorney General; and Jennifer Smith and Tammy Meade, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         Jury Trial

         The testimony at trial established that, during the day leading up to the incident, the victim, who was three years old, was in the custody of Ms. LaTonya Majors, who did not observe the victim pick up or ingest anything unusual. State v. Kwaku Aryel Okraku, No. M2013-01379-CCA-R3-CD, 2014 WL 3805801, at *1 (Tenn. Crim. App. Aug. 1, 2014), perm. app. denied (Tenn. Dec. 19, 2014).[1]

         That evening, Ms. Majors returned to her home after being unable to locate a friend to watch the victim while Ms. Majors attended her cosmetology class. Id. at *2. The Petitioner returned to the home "a few minutes" after she and the victim returned but quickly left and stated that he was going to his mother's residence. Id. The victim then began displaying unusual behavior, such as praying, stating that she saw or was talking to Jesus, and naming people she knew. Id. When the Petitioner returned, Ms. Majors brought the victim to him to show him her unusual behavior. Id. The victim collapsed while the Petitioner was holding her. Id. Ms. Majors estimated that "'[p]robably 20 to 30 minutes' elapsed between the time when she first observed the victim praying to the time when the victim collapsed in the [the Petitioner]'s arms[]" and that "the victim was back at home for 'about 45 minutes to an hour" before she collapsed.'" Id. A neighbor began performing CPR on the victim, and Ms. Majors called 9-1-1. Id. at *3. The paramedic who responded, Mr. Anthony Bryant, observed that the victim "was seizing and was just twitching pretty much all over . . . . [Her][e]xtremities, body, head, eyes were twitching." Id.

         On direct appeal, this court summarized additional evidence, as follows:

After the victim arrived at Southern Hills Hospital, doctors were able to start the victim's heart beating again. Mr. Bryant then transported the victim to Vanderbilt Children's Hospital after about "20 or 30 minutes." Mr. Bryant agreed that nothing about the victim's behavior was inconsistent with the victim's having suffered a cocaine overdose that day.
. . . .
Once the victim arrived at Vanderbilt Children's Hospital, doctors informed Ms. Majors that the victim was nearly unresponsive. Ms. Majors then learned on June 13, 2008, that the victim had cocaine in her system and that the cocaine was the cause of her unusual behavior. Upon learning that the victim had tested positive for cocaine, Ms. Majors "freaked out" on the [Petitioner], shouting at him and telling him that she hated him.
Ms. Majors became upset with the [Petitioner] based upon a December 2006 incident, where Ms. Majors found the victim playing with a bag in her mouth in a closet in the room that Ms. Majors shared with the [Petitioner]. The bag was small and appeared to have been torn off and tied, and Ms. Majors observed two "rocks" inside the bag that were dark yellow. Ms. Majors confronted the [Petitioner] about the bag when he returned home, and the [Petitioner] told her that the bag contained "rat poison." Ms. Majors did not believe the [Petitioner] and kept asking him about the substance in the bag, at which point the [Petitioner] told her that she "kn[e]w what it [was] and just kind of gave a smirk." Although the [Petitioner] did not specifically tell her what the substance was, Ms. Majors surmised that the bag contained rock cocaine. She believed it was cocaine partially because she knew that rat poison looked "like a green little pellet" and because the items in the bag did not match that description, nor were there rats in the residence. The [Petitioner] eventually left with the bag and told Ms. Majors that he had been holding it for a friend.
. . . .
The morning after discovering that the victim tested positive for cocaine, Ms. Majors had a conversation with the [Petitioner] at their home where they discussed how the victim could have tested positive for cocaine. The [Petitioner] told Ms. Majors that the victim possibly could have gotten the cocaine from a ball cap because the [Petitioner] had "cooked some up" in the microwave the night that the victim collapsed. He said that some of "it" may have gotten onto the cap. The [Petitioner] asked Ms. Majors if the victim had been playing with any of his hats, and Ms. Majors replied that she had, that she "always plays with all of his caps." Ms. Majors was not aware that the [Petitioner] had been cooking anything in the microwave on the night of the incident, and, although the [Petitioner] did not say what he had been cooking, it was insinuated to Ms. Majors that it was cocaine because the disclosure came during a conversation about how cocaine could have entered the victim's system. That same day, Ms. Majors relayed the details of this conversation to police officers and also informed them of the December 2006 incident.
Ms. Majors described the conversation between herself and the [Petitioner] as "sarcasm, but at the same time it was [the [Petitioner]] saying that he was doing it." The [Petitioner] informed Ms. Majors that he discovered a hat with powder on it, and Ms. Majors saw the hat and observed that it had a white powder. The [Petitioner] stated that he was "back at it, " meaning that he was selling drugs again. Ms. Majors agreed that she never observed any large amounts of cash or digital scales or other drug paraphernalia in the townhouse.

Id. at *4-5. Dr. John Davis, a forensic pathologist and assistant medical examiner at Forensic Medical, did not perform the victim's autopsy but agreed that the victim's cause of death was related to her ingestion of cocaine. Id. at *5. Dr. Donna Seger testified that "cocaine is rapidly absorbed into the body and that 'the highest level of cocaine occurs very shortly after you ingest it, certainly within an hour.'" Id. She also testified that "seizures occur quickly after a peak level of cocaine is reached." Id. Additionally,

Ms. Aniesha Ollie testified that Ms. Majors was her best friend. She shared childcare responsibilities with Ms. Majors; Ms. Majors would look after her children when Ms. Ollie could not find a babysitter, and Ms. Ollie would do the same for Ms. Majors. Ms. Ollie did not have any contact with the victim on the day that she was admitted to the hospital. She testified that ...

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