Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs September 20, 2017
from the Criminal Court for Knox County No. 105657 Bob R.
Petitioner, Dorothy Denise Cross, filed a petition for
post-conviction relief from her assault conviction, alleging
that trial counsel was ineffective by failing to seek a
continuance due to the Petitioner's mental health issues.
The post-conviction court denied the petition, and the
Petitioner appeals. Upon review, we affirm the judgment of
the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Liddell Kirk, Knoxville, Tennessee, for the Appellant,
Dorothy Denise Cross.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Charme P. Allen, District Attorney
General; and Ashley McDermott, Assistant District Attorney
General, for the Appellee, State of Tennessee.
McGee Ogle, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
MCGEE OGLE, JUDGE.
trial, the State's proof revealed that in September 2011,
the victim, a native of Honduras, and her family moved to an
upstairs apartment of a house in Knoxville. State v.
Dorothy Denise Cross, No. E2013-02133-CCA-R3-CD, 2014 WL
4748337, at *1 (Tenn. Crim. App. at Knoxville, Sept. 25,
2014). The Petitioner lived in a downstairs apartment of the
house. Id. On September 16, 2011, the victim, who
was seven months pregnant, accidentally locked herself out of
the apartment. Id. A relative contacted the
victim's husband and told him to come home and unlock the
door. Id. While the victim waited on the front porch
for her husband, the Petitioner came home and began arguing
with her, but the victim spoke only Spanish, and the
Petitioner spoke only English. Id. The Petitioner
"'threw herself'" at the victim, hit her,
grabbed her hair, grabbed her neck, and threw her against the
wall. Id. The Petitioner then pushed the victim, and
they both fell down the porch steps. Id. Afterward,
the Petitioner ran away, and the victim notified the police
of the assault. Id.
Petitioner testified that at the time of the incident, she
had been living in the apartment for approximately two
months. Id. at *2. The landlord would not make any
repairs to the apartment, and the lock on her apartment door
did not "'lock all the way.'" Id.
On different occasions in September, the Petitioner noticed
that items in her apartment had been moved and that some of
her belongings were missing. Id. She repeatedly
called 911 and had the police "'walk
around'" her apartment to ensure her safety.
Id. She suspected that the people who lived upstairs
were responsible for the unauthorized entries into her
apartment. Id. When the Petitioner saw the victim on
September 16, she confronted the victim about her suspicions
and told the victim to stay out of her apartment.
Id. at *2-3. The victim responded in Spanish and
reached into her purse. Id. at *3. The Petitioner
thought the victim was reaching for a knife, feared for her
life, and grabbed the strap of the victim's purse.
Id. Both women "'fell back.'"
Id. Thereafter, the Petitioner went to her apartment
to change shoes and then went to a friend's house.
Id. She denied hitting the victim. Id. The
Petitioner was convicted of four counts of misdemeanor
assault, which were merged into a single conviction.
Id. at *1. On direct appeal, this court affirmed the
Petitioner's conviction. Id.
the Petitioner filed a timely pro se petition for
post-conviction relief. After appointment of counsel, two
amended petitions were filed. In the petitions, the
Petitioner alleged in pertinent part that "trial counsel
was ineffective in not seeking a continuance due to the
Petitioner's mental state at the time of trial" and
that her "distressed mental and emotional state likely
influenced the jury's perception of her credibility in a
way detrimental to her defense." See Dorothy Denise
Cross v. State, No. E2016-00104-CCA-R3-PC, 2016 WL
6110713, at *1 (Tenn. Crim. App. at Knoxville, Oct. 19,
2016). The post-conviction court summarily denied the
petitions, finding the Petitioner had not alleged any
behaviors that should have indicated to counsel she had
mental distress, and the Petitioner appealed the court's
decision. Id. This court concluded that the
Petitioner had stated a colorable claim for post-conviction
relief and remanded the case for a hearing. Id. at
hearing, the Petitioner testified that the altercation
occurred in 2011 and that trial counsel was appointed to
represent her shortly after she was arrested. She met with
him, and they "[b]riefly" discussed the case.
Approximately one month prior to trial, the Petitioner told
trial counsel that she was "stressed out, " that
she had memory problems, and that she "didn't feel
comfortable because of [her] mental status." She
explained that the unauthorized entries into her apartment
had caused her to fear being there and that she continued to
be upset by the thought of strangers in her apartment. The
Petitioner acknowledged that in 2012, she moved out of the
apartment and began living with her daughter in Nashville. In
response to the Petitioner's concerns, trial counsel
arranged for her to have mental health treatment at
day of trial, the Petitioner told trial counsel that she did
not feel competent to stand trial. She explained that she
"wasn't feeling comfortable" and "was
still upset about what had happened." She said that she
felt "violated" by the unauthorized entries into
her apartment, that no one believed her, and that she was
under a lot of stress. She thought she needed more counseling
and possibly medication, which she was prescribed after her
trial. She asked trial counsel to request ...