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Nelson v. State

Court of Criminal Appeals of Tennessee, Jackson

May 17, 2018

TINA NELSON
v.
STATE OF TENNESSEE

          Assigned on Briefs February 6, 2018

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

         A jury convicted the Petitioner, Tina Nelson, of first degree felony murder committed during the perpetration of aggravated child abuse and of the underlying felony of aggravated child abuse. She petitioned for post-conviction relief, asserting ineffective assistance of counsel, and her petition was denied. On appeal, the Petitioner alleges that she is entitled to post-conviction relief because her trial counsel failed to properly investigate her case or present witnesses, failed to move for a severance, failed to properly challenge testimony that she showed no emotion, and failed to establish that her mental impairment prevented her from assisting in her own defense. After a thorough review of the record, we affirm the denial of post-conviction relief.

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

          Scott A. Lovelace, Ripley, Tennessee, for the appellant, Tina Nelson.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Mark E. Davidson, District Attorney General; and Julie Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         Trial

         The Petitioner's convictions stem from the death of her two-month-old daughter on May 11, 2011. State v. Gregory Nelson and Tina Nelson, No. W2014-00494-CCA-R3-CD(C), 2015 WL 2128598, at *1 (Tenn. Crim. App. May 5, 2015), perm. app. denied (Tenn. Sept. 21, 2015). The victim sustained severe injuries, including brain hemorrhages, retinal and optic hemorrhages, and numerous broken ribs in various stages of healing. Id. at *1. The Petitioner, who has an IQ of 53, and her husband, Mr. Gregory Nelson, were tried together and both convicted of first degree felony murder and aggravated child abuse. Id.

         The victim was born prematurely, weighing a little over three pounds at birth, and she remained in the hospital for approximately two weeks. Id. at *4-5, 9. The Petitioner and Mr. Nelson could not drive, and they did not visit the victim in the hospital until informed by the Department of Children's Services ("DCS") that they would not be permitted to take the victim home unless they visited and bonded with her. Id. at *5. The victim suffered from intrauterine growth retardation, and during her hospital stay, she was given a cranial ultrasound and an MRI which showed a "[c]ontour irregularity, " which "may be an unusual location for hemorrhage." Id.

         The Petitioner and Mr. Nelson met numerous times with a DCS employee, Ms. Zandra Carter-Mann, regarding the welfare and care of the victim and her older sister. Ms. Carter-Mann testified that Mr. Nelson had become aggressive with hospital staff and verbally aggressive to DCS and school employees. Id. at *5-6. The Petitioner followed Mr. Nelson's occasional orders to refuse to talk to Ms. Carter-Mann, and she defended his aggressiveness. Id. at *6. Ms. Dawn Hemby, a youth services officer with the Lauderdale County Juvenile Court, also testified that the Petitioner was "bullied by" Mr. Nelson. Id. at *8-9.

         The State presented witnesses who testified about the victim's condition prior to her death. On April 20, 2011, the Petitioner and Mr. Nelson's older daughter had a pending truancy case, and Ms. Kim Coffee, an employee of the Lauderdale County Juvenile Court, testified regarding the victim's well-being at the time of a hearing related to the truancy case. Id. at *7. The victim had a red spot on her eye and "just stared into space" rather than interacting with those around her. Id. The victim was outside with her family for two or three hours dressed only in very lightweight clothing and a light blanket despite the cold. Id. The Nelsons told Ms. Coffee that they did not have transportation and were afraid they would miss their ride. Id. Ms. Hemby confirmed Ms. Coffee's testimony that the Nelsons were outside in the cold with the victim, who appeared "[a]lmost lifeless" and had a blood spot on the white of her eye. Id. at *8. Ms. Coffee and Ms. Hemby urged the family to consult a physician regarding the victim. Id.

         The Petitioner and Mr. Nelson took the victim to the pediatrician four times after her discharge from the hospital. Id. at *9. On at least one occasion, Mr. Nelson told a social worker at the health department that the victim was breathing strangely and spitting up. Id. On April 28, 2011, after the Nelsons were told by Ms. Hemby and Ms. Coffee to check on the red spot in the victim's eye, the Petitioner told a social worker that she had made a doctor's appointment for the victim but that it was too cold and rainy to take the victim and that she would reschedule the appointment. Id. at *9-10.

         Mr. Nelson's brother, who was also intellectually disabled, stayed with the Nelsons for a period of time, along with his girlfriend and his girlfriend's two children. The defense posited that Mr. Nelson's brother or R.C., the twelve-year-old son of Mr. Nelson's brother's girlfriend, might have been responsible for the victim's injuries. The evidence showed that relations between the Nelsons and Mr. Nelson's brother were generally strained, and the Nelsons believed that Mr. Nelson's brother had told DCS that they were abusing their older child. Id. at *8. Ms. Coffee testified that she received an anonymous call that the Nelsons were physically abusing their older daughter, but a welfare check revealed no injuries on the child. Id. Ms. Coffee also witnessed Mr. Nelson yell and act "out of control" regarding the incident, and he accused his brother of fabricating the report. Id. Ms. Hemby confirmed that the report appeared unfounded and that the child, who was not with her parents at the time, blamed her uncle for the report. Id. at *9.

         Mr. Nelson testified at trial that the victim injured her head when R.C. pushed the Petitioner down while the Petitioner was holding the victim. Id. at *12. He also testified about a time that he had left the victim alone with his brother. Mr. Nelson heard the victim crying from another room, and when he entered, his brother was leaning over the baby and "told him to 'get [his] damn kid.'" Id.

         Mr. Nelson testified that on the day of the victim's death, the Petitioner was outside waiting with their older daughter for the bus, and the Petitioner had the telephone. Id. at *13. Mr. Nelson remained inside with the victim, who suddenly spit up. Id. at *12 Mr. Nelson suctioned the victim's mouth and nose and saw her turn pale and then blue. Id. Mr. Nelson attempted to perform CPR on the victim, and once the Petitioner came in, Mr. Nelson called 911. Id. He testified that the victim's rib fractures could have been caused by CPR. Id. at *14. According to Mr. Nelson, the ambulance took an hour to arrive. Id. at *13. Mr. Nelson testified that the Petitioner also accidentally bumped the victim's head ...


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