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Greenwood v. State

Court of Criminal Appeals of Tennessee, Nashville

June 7, 2018

THOMAS F. GREENWOOD
v.
STATE OF TENNESSEE

          Assigned on Briefs April 18, 2018

          Appeal from the Circuit Court for Coffee County No. 42931 L. Craig Johnson, Judge

         The Petitioner, Thomas F. Greenwood, appeals the post-conviction court's denial of his petition for post-conviction relief in which he challenged his convictions of felony murder during the perpetration of aggravated child neglect, reckless homicide, aggravated child abuse, and aggravated child neglect. On appeal, the Petitioner contends that trial counsel was ineffective by failing to retain an expert, present certain witnesses, and properly prepare the Petitioner for trial. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

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

          John Nicoll, District Public Defender, and Trenena G. Stanley, Assistant District Public Defender, for the appellant, Thomas F. Greenwood.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Craig Northcott, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         Trial

         The evidence presented at trial established that on March 9, 2010, the two-year-old victim died while in the care of the Petitioner, who was the boyfriend of the victim's mother. The facts relevant to this post-conviction appeal are summarized below; a complete recitation of the evidence presented at trial is included in this court's opinion on direct appeal. See State v. Thomas Fancher Greenwood, No. M2013-01924-CCA-R3-CD, 2014 WL 6609308, at *1-21 (Tenn. Crim. App. Nov. 21, 2014), perm. app. denied (Tenn. Apr. 10, 2015).

         The victim's mother testified that the victim, who was born two months prematurely, suffered from asthma and would frequently require breathing treatments when he was a baby. Id. at *1. In the two and one-half months prior to his death, the victim's breathing had improved, and he suffered no asthma attacks. Id. at *2. In February 2010, the victim's mother became reacquainted with the Petitioner, and at the beginning of March, the Petitioner moved in with the victim's mother temporarily. Id. The victim's mother was aware that the Petitioner had epilepsy and that he had once suffered a short, two-to-three-second seizure while he was staying with her, causing him to twitch and drop the telephone he was holding in his hand, but the victim's mother testified that the Petitioner took anti-seizure medication each morning. Id.

         On March 9, 2010, the Petitioner volunteered to watch the victim while her mother testified at the custody hearing of the victim's aunt. Id. Due to the victim's sleep schedule and her mother's expectation of being the first to testify, the victim's mother anticipated that the Petitioner would only be required to watch the victim for approximately "thirty 'waking' minutes." Id. Before leaving her residence, the victim's mother checked on the sleeping victim to ensure that his breathing was fine and departed for the courthouse at 7:30 a.m. Id.

         During the 10:00 hour, the victim's mother retrieved her telephone to check on the victim. Id. In communicating about the condition of the victim, the Petitioner informed the victim's mother that the Petitioner had a seizure while holding the victim and that the Petitioner had dropped the victim, bumping the victim's head in the process. Id. When the victim's mother asked if the victim was stumbling, the Petitioner replied that the victim was fine and was playing in his room. Id. After the court adjourned for lunch, the victim's mother called and asked to speak with the victim, but the Petitioner told her that they had been playing outside and that the victim was then asleep. Id. at *3. The Petitioner tried to call the mother while she was in court. Id. When she returned his call, she learned that the victim had experienced an asthma attack and was in an ambulance. Id. When the victim's mother arrived at the emergency room, the Petitioner said, "I hope they do not get me for child neglect." Id. She then learned that the victim had passed, and emergency room personnel allowed her to see the victim. Id. At trial, the victim's mother reviewed pictures of the victim and testified that prior to leaving the victim in the Petitioner's care, the victim had none of the injuries depicted except for a small pink mark on his head from where he had previously bumped it. Id.

         Mr. Derrick Watson, the responding paramedic, testified that the Petitioner "met him at the door holding the victim, whom Mr. Watson described as 'limp, pulseless, and apneic, which means not breathing.'" Id. at *4. After the Petitioner advised Mr. Watson of the victim's asthma, Mr. Watson and his partner attempted all life-saving methods on the victim, but the victim "had no blood pressure, no pulse, and no respirations." Id. The paramedics transported the victim to the hospital and placed him in a hospital bed. Id. Mr. Watson testified that the victim had bruising around his neck, above one eye, in the abdominal area, and along the spinal column. Id. Mr. Watson was "'100% positive'" that the resuscitative efforts had not caused any of the victim's injuries, and he testified that he had contacted the police because he "'suspected some type of abuse.'" Id.

         Tullahoma Police Department Officer Matthew Walker testified that when he responded to the 9-1-1 call, the Petitioner told him that "he had suffered a seizure and dropped the victim, causing the victim to strike his head on a bed rail." Id. When the victim showed signs of respiratory distress, the Petitioner attempted to use the victim's nebulizer to assist him before calling 9-1-1. Id. Officer Walked testified that the Petitioner was "'very calm.'" Id. When Officer Walker arrived at the hospital, he learned that the victim had died, and he saw "'multiple marks'" all over the victim's body. Id. at *5.

         Ms. Amy Vickers, a registered nurse at the Harton Regional Medical Center, testified that the victim "had multiple bruises and was unresponsive" when he arrived at the hospital and that the victim was pronounced dead at 3:17 p.m. Id. Ms. Vickers testified that the Petitioner described the events of that day in a "'flat and non[-]emotional'" tone of voice. Id. Ms. Vickers also "identified photographs of the victim depicting the various injuries on his body, including scratches about his face, bruising around his right eye, an abrasion on his chin, abrasions and scratches on the back of his neck, and bruising around his neck." Id.

         Tullahoma Police Department Detective Dale Stone interviewed the Petitioner later that day. Id. at *6. After reading the Petitioner his rights, the Petitioner gave Detective Stone his version of events:

[The Petitioner] reported that [the victim's mother] left the house at 9:30 a.m. He awoke at 10:00 a.m. and woke up the victim. He took a shower and gave the victim a bath. Around noon, they went outside to play. The victim was playing and kicking a football when he began to cough. They went inside. Thirty to forty-five minutes later, around 1:00 p.m., the victim began to cough more, and [the Petitioner] administered a breathing treatment with the nebulizer. The victim turned "light blue, " so [the Petitioner] called 9-1-1. He used a suction instrument to remove mucus from the victim's nose and throat. The victim stopped breathing, so [the Petitioner] called 9-1-1 ...

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