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Cornwell v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 1, 2017


          Session: February 23, 2017

         Appeal from the Criminal Court for Knox County No. 101725 Steven W. Sword, Judge

         The 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.

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

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.




         I. Procedural History

         The 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.

         This 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.

         II. Trial Facts

         At 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.

         Titonia 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]." Id.

          What 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 [911]" 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.

         The 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." Id.

         The 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.


         Detective 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." Id.

         In 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 moved forward.

Id. at *8.

         In 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.

         Officer 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.

         Based 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.

         Doctor 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.

         Doctor 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 Petitioner's] vehicle.


         James 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." Id.

         "Mr. 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." Id.

         III. Post-Conviction Hearing

         A. Former Judge Richard R. Baumgartner

         Former 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).

         From 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.

         The 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.

         However, 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.

         Lead 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."

         Lead 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 "[v]ery" confused.

         However, 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."

         Co-counsel 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."

         Other 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 proceedings.

         Co-counsel 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 ...

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