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Nelson v. State

Court of Criminal Appeals of Tennessee, Jackson

February 23, 2018

GREGORY NELSON
v.
STATE OF TENNESSEE

          Assigned on Briefs August 15, 2017

         Appeal from the Circuit Court for Lauderdale County No. 9132 Joe H. Walker, III, Judge

         Petitioner, Gregory Nelson, appeals as of right from the denial of post-conviction relief following an evidentiary hearing. After a review of the briefs of the parties, the post-conviction court's order, and the record, we affirm the judgment of the post-conviction court.

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

          Jeremy T. Armstrong, Covington, Tennessee, for the appellant, Gregory Nelson.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; D. Michael Dunavant; District Attorney General; and Julie K. Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Background

         Following a jury trial, Petitioner and his wife were both convicted of aggravated child abuse and of first degree felony murder during the perpetration of aggravated child abuse. The victim was their two-and-one-half-month-old daughter. This court affirmed the convictions of Petitioner and his wife. State v. Gregory Nelson and Tina Nelson, No. W2014-00494-CCA-R3-CD, 2015 WL 2128598, at *1 (Tenn. Crim. App. May 5, 2015). The opinion set forth a detailed description of the evidence introduced at trial. In summary, direct evidence established the guilt of Petitioner and his wife beyond a reasonable doubt. Id. at 1-21. The forensic pathologist who performed the autopsy testified that the victim's cause of death was a closed head injury from a "traumatic injury." Id. at 3. Also, there were healing fractures on six ribs on the left lateral side, five ribs on the right lateral side, and eight ribs on the left posterior side. Id. The forensic pathologist reported that the multiple rib fractures supported the conclusion that the brain injury of "acute intracranial hemorrhage" was the result of trauma. Id. at 4. Testimony, including that of Petitioner, established that only Petitioner or his wife could have caused the described injuries "because they were the only people who took care of the victim."

         Issues Raised on Appeal

         Petitioner has presented three issues on appeal, all related to his contention that he is entitled to post-conviction relief based upon trial counsel rendering ineffective assistance of counsel. His arguments are that trial counsel: (1) failed to consult with Petitioner regarding the evidence and failed to allow Petitioner to participate in his own defense; (2) failed to present expert testimony to rebut the testimony of the forensic pathologist and also offer alternative causes for the victim's injuries and to present other, unnamed, experts to "mitigate Petitioner's role" in the victim's death; and (3) failed to subpoena exculpatory records.

         Post-Conviction Hearing

         As to the first issue, Petitioner testified on direct examination by his post-conviction counsel that trial counsel met with Petitioner only "one time for about five minutes before we done [sic] the trial." Petitioner testified that trial counsel also never communicated with him by letters or phone calls. Petitioner testified that one witness who could challenge the State's proof was not called as a witness by trial counsel. However, Petitioner candidly admitted that if the witness had testified, he ...


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