Court of Criminal Appeals of Tennessee, Knoxville
Session: February 23, 2017
from the Criminal Court for Knox County No. 101725 Steven W.
Petitioner, Carlos Cornwell, appeals as of right from the
Knox County Criminal Court's denial of his petition for
post-conviction relief. The Petitioner contends (1) that he
was denied his right to a competent and impartial trial
judge, "resulting in structural constitutional error,
" due to the presiding trial judge's out-of-court
misconduct during the course of the Petitioner's trial
proceedings; (2) that the trial judge failed to perform his
role as the thirteenth juror; (3) that the Petitioner
received ineffective assistance of counsel because trial
counsel failed to inspect the Petitioner's vehicle in a
timely manner and failed to properly challenge evidence that
was not properly preserved by the State; and (4) that the
Petitioner received ineffective assistance of trial counsel
because trial counsel failed to "properly investigate,
challenge, and counter" the testimony of one of the
State's expert witnesses and failed to properly address
that witness's having questioned trial counsel's
credibility during cross-examination. Following our review,
we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Stephen Ross Johnson, Knoxville, Tennessee (at hearing and on
appeal); Chelsea Caitlin Moore (at hearing) and Christy Ann
Smith (on appeal), Student Attorneys, University of Tennessee
College of Law Innocence and Wrongful Convictions Clinic, for
the appellant, Carlos Cornwell.
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Senior Counsel; Charme Allen, District Attorney
General; and Ta Kisha Fitzgerald, Assistant District Attorney
General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
Petitioner was indicted on one count of first degree
premeditated murder for the March 2008 death of his wife,
Leoned Cornwell. State v. Carlos Radale Cornwell,
No. E2011-00248-CCA-R3-CD, 2012 WL 5304149, at *1-2 (Tenn.
Crim. App. Oct. 25, 2012), perm. app. denied (Tenn.
Mar. 5, 2013). Following a jury trial in May 2009, the
Petitioner was convicted of the lesser-included offense of
second degree murder and sentenced to thirty-five years'
imprisonment. Id. at *1.
court affirmed the Petitioner's conviction and sentence
on direct appeal. Cornwell, 2012 WL 5304149, at *1.
On March 5, 2013, our supreme court declined to review that
decision. On June 7, 2013, the Petitioner filed a timely pro
se petition for post-conviction relief. Counsel was appointed
to represent the Petitioner in this matter and an amended
petition and memorandum of law in support of the amended
petition were subsequently filed on the Petitioner's
behalf. Following a lengthy post-conviction hearing, the
post-conviction court entered a written order denying the
petition on January 22, 2016.
approximately 4:30 a.m. on March 5, 2008, two of the
Petitioner's neighbors were awakened by the sound of the
Petitioner's "screaming at the victim" and
"calling her profane names." Cornwell,
2012 WL 5304149, at *2. One of the neighbors heard the
Petitioner say to the victim, "Stupid, [motherf----r],
you know that I'll kill you." Id. The
Petitioner was then seen at his workplace around 5:00 a.m.
Id. However, the Petitioner left work between 5:30
and 5:45 a.m., shortly after receiving a phone call.
Id. Another of the Petitioner's neighbors saw
the Petitioner and the victim walking toward their car and
"bickering" at approximately 6:00 a.m. Id.
Sawyer was using the ATM at an ORNL Federal Credit Union
branch just before 6:30 a.m. when the Petitioner and the
victim's car pulled up behind her. Cornwell,
2012 WL 5304149, at *2. Ms. Sawyer saw the victim exit the
passenger side of the vehicle and look "down into the
car." Id. Ms. Sawyer testified that the victim
did not seem agitated and that she did not hear the
Petitioner and the victim arguing. Id. When Ms.
Sawyer looked back at the car a second time, the victim
"had both passenger side doors open." Id.
Ms. Sawyer drove away after receiving her ATM receipt and
noticed that the Petitioner's vehicle had not moved,
"but she could no longer see the [victim]."
happened next was not captured on the credit union's
surveillance cameras, and no one witnessed it. The Petitioner
was then seen walking down Magnolia Avenue "screaming
hysterically for someone to call " because
"'someone had been hit.'"
Cornwell, 2012 WL 5304149, at *3. Gail and Devery
Cox stopped to assist the Petitioner. Id. They
called 911 and "saw the victim on the ground
behind" the Petitioner's car "[a]s soon as . .
. [they] entered the parking lot" of the credit union.
Id. The victim's eyes were open and she was
still breathing when Mr. and Ms. Cox found her, but the
victim "died before emergency personnel arrived on the
scene." Id. at *3-4.
Petitioner was "frantically running about, "
"hysterical, " and saying, "'Oh my God, oh
my God, ' 'I need help, ' 'What have I
done?', and 'What am I going to do?'"
Cornwell, 2012 WL 5304149, at *3-4. The Petitioner
told Ms. Cox that "he and the victim were arguing when
the victim" got out of the car and
"immediately" started walking. Id. at *3.
According to Ms. Cox, the Petitioner stated that "he
shifted the car into reverse and began backing up without
realizing that he ran over the victim." Id. The
Petitioner told Ms. Cox that he got out of the car and saw
that the victim was underneath it. Id. So, the
Petitioner stated, "he got back into the vehicle in
order to move it off of the victim's body."
Petitioner was interviewed by Detective Steve Still of the
Knoxville Police Department (KPD). Cornwell, 2012 WL
5304149, at *4-5. The Petitioner told Detective Still that
"he thought he and the victim might be splitting
up." Id. at *5. The Petitioner explained that
he and the victim went to the ATM that morning to get cash
for a car payment. Id. The Petitioner then told
Detective Still the following:
[T]he victim cursed [the Petitioner], exited their vehicle,
retrieved her umbrella from the back of the car, and began
walking toward Magnolia [Avenue]. [The Petitioner] backed up
the vehicle to see where the victim was going, then
accidentally ran over her. When [the Petitioner] realized he
struck the victim with the car, he pulled forward to get the
car off her. [The Petitioner] stated that he did not mean to
hit her and that it was not intentional.
Still, who had "previously served as a fatal accident
investigator, " testified that what he "witnessed
at the scene indicated that the victim's body was dragged
in the opposite direction of what [the Petitioner] told
him" and noted that the Petitioner "could offer no
explanation for the blood on the bottom front of the
car." Cornwell, 2012 WL 5304149, at *4-5.
Detective Still also noted that there was no damage to the
hood or trunk of the Petitioner's car. Id. at
*4. That indicated to Detective Still that "the
victim's center of gravity was below the hood or trunk
line of the car." Id. at *5. Put another way,
Detective Still opined that "the victim was already on
the ground when [the Petitioner] ran over her."
addition to Detective Still, KPD accident reconstructionists
Officers Ron Trentham and L.B. Steele testified at trial.
Cornwell, 2012 WL 5304149, at *7-9. Officer Trentham
described his observations of the scene as follows:
[Officer Trentham] noted several drag marks from the edge of
the roadway leading toward the final resting spot of the
victim and the automobile. He also observed the presence of
red drag marks that were consistent with blood. He saw blood
drops at the edge of the roadway and blood smear from the
sidewalk onto the asphalt area of the parking lot. Officer
Trentham found blue drag marks that were consistent with the
victim's denim jacket. All of the marks he found started
at the edge of the road and led up to the final point of rest
of the victim's body and [the Petitioner's] car.
Officer Trentham located a tan or brown scrape mark that was
consistent with the victim's skin and the injury pattern
the medical examiner found on the victim's lower body. He
observed two small black marks that were consistent with the
victim's shoes. Again, all of the lines Officer Trentham
observed led from the street toward the credit union to the
point where the victim's body came to rest. He was able
to determine the direction of movement because the marks were
darker at the initial points of impact and faded as they
Id. at *8.
observing the Petitioner's car, Officer Trentham opined
that "the victim's body was struck from the front as
the vehicle moved in a forward direction, " in part,
because he "determined that something had disturbed the
dirt around the front license plate holder and the lower part
of the front bumper." Cornwell, 2012 WL
5304149, at *8. Underneath the car, there was evidence
"that something had cleaned off parts of the
underside" and what appeared to be blood stains.
Id. at *7. "The blood and 'brush off'
were located on the front passenger side of the
automobile." Id. Subsequent forensic testing
confirmed the presence of the victim's blood on "the
metal sheet, the front guard, and the tubing guard"
underneath the car. Id. at *9.
Trentham testified that the blood stains ran "the length
of the vehicle on the passenger side leading to the rear
passenger side tire." Cornwell, 2012 WL
5304149, at *8. In addition to blood found on the underside
of the car, Officer Trentham observed "blue lines that
were consistent with the victim's denim jacket"
"on the frame of the car next to the rear tire."
Id. Officer Trentham observed "[g]rease marks
and dirt on the victim's jacket [that] were consistent
with her clothing coming into contact with the right front
wheel area" of the Petitioner's car. Id.
upon the foregoing, Officer Trentham opined that "the
victim was lying on the ground bleeding at the curb
line" when she was struck by the Petitioner's car.
Cornwell, 2012 WL 5304149, at *9. Officer Trentham
further opined that "from the point where the victim was
struck she was then pushed by the vehicle."
Id. Officer Trentham noted that the
"victim's skin was transferred to the pavement as a
result of her jogging pants coming down, exposing her hip
area to the concrete, and leaving marks." Id.
Additionally, the blood spatter evidence at the scene
suggested that "the general direction of motion of the
victim's body was . . . toward the credit union from the
street." Id. at *7.
Darinka Mileusnic-Polchan performed an autopsy of the
victim's body and testified at trial as an expert in
forensic pathology. Cornwell, 2012 WL 5304149, at
*10. Dr. Mileusnic-Polchan opined that the victim's
manner of death was homicide. Id. Dr.
Mileusnic-Polchan's observations and opinions regarding
the victim's death were described in this court's
direct appeal opinion as follows:
Dr. Mileusnic-Polchan documented sixty separate injuries. The
victim suffered several head and neck injuries, including
linear marks on the chin consistent with tire marks. An
abrasion by the right eyebrow displayed directionality,
indicating that the body was moving against the surface. Dr.
Mileusnic-Polchan found blood stains and hair attached to the
shoulder of [the] victim's jacket, most likely caused by
forced bending of the head over the shoulder.
Dr. Mileusnic Polchan noted that the victim's right
clavicle was broken, and the neck and spine junction was
fractured. The fracture was caused by extraordinary force
that separated the head from the neck. The tire marks on the
victim's neck indicated that the vehicle's rear tire
ran over it. This injury was one of the primary causes of the
victim's death. The victim also had linear abrasions
under and on her right breast. Dr. Mileusnic-Polchan
described the injury to the victim's breast area as
indicating movement of the victim in a particular direction,
and attributed the injury to contact with the front bumper of
[the Petitioner's] vehicle. She analyzed a bruise pattern
and a burn on the victim's body and matched the injuries
to a hot part from underneath the car, perhaps part of the
exhaust or catalytic converter.
The victim's abdomen sustained a great deal of injury,
including "abrasions and stretch abrasions." Dr.
Mileusnic-Polchan identified a tire track along the
victim's abdominal abrasions. She stated that the tire
marks could only have been made by the front tires because
the rear tires were bald and could not have left those
particular indentations. Dr. Mileusnic-Polchan pointed out a
large burn that was over four inches long by two inches
across. The skin from that burn was retrieved from underneath
the vehicle. She commented on an extensive deep bruise on the
right thigh that could only be consistent with the tire
crossing the victim's thigh. The victim's pelvis was
completely crushed, including the sacrum.
Dr. Mileusnic-Polchan noted that the victim's back was
relatively clear of injury, which indicated that she was
facing the vehicle with clothing covering her back. The
victim did, however, receive a road rash injury to her back
and buttocks. In the sacral area, some of the victim's
skin was missing. Dr. Mileusnic-Polchan explained that the
pattern of the injury established the direction of movement
of the victim's body.
As part of her investigation, Dr. Mileusnic-Polchan examined
[the Petitioner's] vehicle at the impound lot. She
compared the victim's injuries with the damage to and
evidence on [the Petitioner's] vehicle. Dr.
Mileusnic-Polchan found that the evidence and victim's
injuries supported the conclusion that the victim was struck
by the front of the vehicle.
Cornwell, 2012 WL 5304149, at *10-11.
Gregory James Davis testified at trial on the
Petitioner's behalf as an expert in forensic pathology.
Cornwell, 2012 WL 5304149, at *11. Dr. Davis
explained, in reference to Dr. Mileusnic-Polchan's
testimony, "that the term 'consistent with'
merely implie[d] that physical evidence could support a
particular scenario; the term itself [did] not mean that the
scenario or story [was] true." Id. The
remainder of Dr. Davis's testimony was described in this
court's direct appeal opinion as follows:
Based on his review of the evidence, Dr. Davis could not
offer an opinion as to whether [the Petitioner] intended to
inflict harm on the victim, nor could he confirm that the
victim's injuries were unidirectional. The injuries were
consistent with being unidirectional but were not indicative
or diagnostic of them being unidirectional. Dr. Davis
disputed Dr. Mileusnic-Polchan's findings that that
injury on the victim's face was consistent with being run
over by the tire of the car. If her face had been run over by
a car, he would have expected to find more fractures to the
jaw and skull. Dr. Davis believed that the victim's death
should have been classified as "undetermined" or
"not determined." His view of the physical evidence
was that the evidence was consistent with [the
Petitioner's] backing over the victim. The injuries
sustained by the victim, specifically the wrist fracture and
the abrasions on both hands, were consistent with her walking
away from the vehicle, falling, and being struck by [the
Alan Parham testified on the Petitioner's behalf as an
expert in accident reconstruction. Cornwell, 2012 WL
5304149, at *11. "Mr. Parham testified that his
examination of [the Petitioner's] car was limited because
the car had been stored outdoors exposed to weather."
Id. at *12. Mr. Parham explained that "the
police department did not sufficiently document the vehicle
in order for him to determine the presence of dirt rub on the
trunk, hood, or bumpers of [the Petitioner's]
vehicle." Id. Mr. Parham did not believe that
"the photograph of the front license plate . . . [was]
conclusive of dirt rub or interaction with a person."
Id. Likewise, Mr. Parham "did not find dirt rub
documented anywhere on the topside of the vehicle."
Parham generally agreed with many of Officers Trentham's
and Steele's findings." Cornwell, 2012 WL
5304149, at *11. However, despite the fact that the car had
not been properly preserved, Mr. Parham testified that he
"did not believe that the officers' opinions that
the victim was struck in one direction could be proven by the
evidence." Id. at *12. Instead, Mr. Parham
opined "that the physical evidence was consistent with
[the Petitioner's] explanation of the incident."
Former Judge Richard R. Baumgartner
Judge Richard R. Baumgartner presided over the
Petitioner's trial court proceedings. During the time
that the Petitioner's case was pending in the trial
court, Judge Baumgartner "was taking opiate pain
killers." According to the subsequent investigation,
Judge Baumgartner began getting multiple prescriptions for
these narcotics from multiple doctors in 2008. In 2009, Judge
Baumgartner approached Deena Castleman, a former offender in
the Knox County Drug Court program that Judge Baumgartner
oversaw, and asked her to "procure hydrocodone for
him." United States v. Baumgartner, 581
Fed.App'x. 522, 525 (6th Cir. 2014).
that point, Judge Baumgartner regularly gave Ms. Castleman
"money to procure pills for him" and even
"bought her a cellphone to facilitate the
transactions." Baumgartner, 581 Fed.App'x.
at 525. Eventually, Judge Baumgartner and Ms. Castleman began
"a sexual relationship." Id. Ms. Castleman
revealed the identities of her suppliers to Judge Baumgartner
and introduced him to one of the suppliers, whom Judge
Baumgartner "began dealing [with] directly."
Id. Until his arrest in 2011, Judge Baumgartner also
attempted to intervene on Ms. Castleman's behalf with
other judges, a nonprofit housing director, and a prosecutor.
Id. at 525-26.
Petitioner's lead trial counsel testified at the
post-conviction hearing that he was the elected District
Public Defender for the Sixth Judicial District. Lead counsel
further testified that as the District Public Defender, he
regularly appeared before Judge Baumgartner. Initially, lead
counsel "enjoy[ed] trying cases in front of" Judge
Baumgartner and thought Judge Baumgartner "was a very
good judge" who "wanted to be challenged
intellectually" by novel legal issues.
lead counsel noticed a change in Judge Baumgartner's
demeanor in 2008 and 2009. Lead counsel testified that Judge
Baumgartner became "aggressive, " "snarky,
" "disrespectful, " and "snipey."
According to lead counsel, Judge Baumgartner started making
"unprofessional" personal comments about lawyers in
his courtroom. Lead counsel believed that Judge
Baumgartner's behavior was directed mostly at defense
counsel and that "the [S]tate's side got the benefit
of the doubt." Lead counsel candidly admitted that he
"still harbor[ed] a good bit of hostility toward [Judge
Baumgartner] over the way he changed and the way he
treated" the defense bar.
counsel noted that the Petitioner's case was tried in May
2009. Lead counsel testified that during the pretrial phase,
he thought Judge Baumgartner had trouble "manag[ing] the
lawsuit." Specifically, lead counsel complained that he
"couldn't get [Judge Baumgartner] to schedule [and
hold] hearings." Lead counsel further testified that
Judge Baumgartner could not "recall from one hearing to
the next . . . what [they] were there for and . . . what had
happened at the last hearing." Lead counsel also stated
that Judge Baumgartner's rulings before and during the
trial, in his opinion, "didn't make any sense."
counsel testified that Judge Baumgartner's condition
appeared to be worse during the hearings on the
Petitioner's motion for new trial. Specifically, lead
counsel recalled that his impression from the last motion for
new trial hearing was that Judge Baumgartner "was paying
no attention . . . to what was going on" and was
lead counsel admitted that he could not recall anything
during the proceedings in the Petitioner's case that
caused him to think that Judge Baumgartner was "under
the influence of something." For example, lead counsel
did not recall Judge Baumgartner ever slurring his speech,
laying his head down, closing his eyes, falling asleep, or
appearing "to lose interest." Lead counsel also
admitted that in an interview with the Knoxville
News-Sentinel in February 2011, he stated that he thought the
"fallout" from Judge Baumgartner's misconduct
and subsequent arrest would be "minimal."
testified that he had been the District Public Defender's
Office's supervisor for Judge Baumgartner's courtroom
and that he was in Judge Baumgartner's courtroom
"every day." Initially, co-counsel thought that
Judge Baumgartner was "highly analytical, "
"very intelligent, " "fair to both sides,
" and "kept good control of his courtroom."
Over time, however, co-counsel thought "Judge
Baumgartner seemed to be less happy, less attentive, more
prone to anger, [and] certainly a lot less patient."
Co-counsel noted that Judge Baumgartner's irritation
"was directed at . . . members of the bar, . . . his own
court officer[, ] and witnesses."
than Judge Baumgartner's general irritation, co-counsel
did not recall "anything that [Judge Baumgartner] did in
the courtroom that would indicate that he was under the
influence during [the Petitioner's] trial."
Co-counsel also could not "point to anything about Judge
Baumgartner's behavior specific to this case that . . .
would indicate that he wasn't paying attention."
Specifically, co-counsel could not recall ever seeing Judge
Baumgartner with his head down or sleeping during the
did recall that at the last hearing on the Petitioner's
motion for new trial, Judge Baumgartner was
"particularly distracted" and "appeared not to
be focused . . . at all." Co-counsel testified that this
was the only day of the proceedings when he thought
"[s]omething was wrong" with Judge Baumgartner.
Co-counsel noted that after the hearing, Judge Baumgartner
entered a short written order denying the Petitioner's
motion for ...