Assigned on Briefs February 6, 2018
from the Circuit Court for Lauderdale County No. 9132 Joe H.
Walker, III, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
A. Lovelace, Ripley, Tennessee, for the appellant, Tina
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
Everett Williams, J., delivered the opinion of the court, in
which Camille R. McMullen and J. Ross Dyer, JJ., joined.
EVERETT WILLIAMS, JUDGE
AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
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.
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
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 ...