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Starner v. State

Court of Criminal Appeals of Tennessee, Nashville

August 16, 2019

JOSHUA R. STARNER
v.
STATE OF TENNESSEE

          Assigned on Briefs May 15, 2019

          Appeal from the Circuit Court for Montgomery County No. 41200170 William R. Goodman III, Judge

         The Petitioner, Joshua R. Starner, appeals the denial of post-conviction relief, arguing that he received ineffective assistance of trial counsel and that counsel's actions deprived him of his right to testify at trial. We affirm the judgment of the post-conviction court.

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

          B. Nathan Hunt and Zachary L. Talbot, Clarksville, Tennessee, for the Petitioner, Joshua R. Starner.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         This case stems from the abuse, neglect, and killing of the Petitioner's twenty-three-month-old stepson. State v. Joshua R. Starner, No. 2014-01690-CCA-R3-CD, 2016 WL 1620778, at *1 (Tenn. Crim. App. Apr. 20, 2016), perm. app. denied (Tenn. Aug. 18, 2016). The Petitioner and the victim's mother, Caitlyn Metz, were indicted together and jointly tried. Id.

         At trial, evidence was presented showing that the Petitioner was with the victim all day on February 7, 2009, the day the victim was admitted to the hospital for his injuries, and that the codefendant was with the victim at all times that day except for a period of approximately two hours when she left to purchase groceries at a commissary on a nearby military base. Id. at *3, *10-12. When the codefendant returned from the commissary, she immediately discovered that the victim was unresponsive and his body limp. Id. at *11. She screamed and informed the Petitioner of the victim's state, and the Petitioner called 9-1-1. Id. The emergency medical technician who responded to the scene stated that the victim was listless and unresponsive but was making some effort to breathe. Id. at *2. At the time, one of the victim's pupils was completely dilated and the other pupil was sluggish, and the victim exhibited signs of deep brain injury. Id. at *3. The victim was intubated and transported to the hospital. Id.

         An officer responding to the scene spoke with the Petitioner, who was upset and crying. Id. The Petitioner told the officer that he had left the victim alone in the bathtub for a brief moment, and when he returned, the victim was lifting his head out of the water and coughing and spitting up water. Id. He did not indicate that the victim had suffered any other injuries. Id. The Petitioner claimed the victim seemed fine when he removed him from the tub and that he observed the victim in his crib for twenty to twenty-five minutes before leaving to take a shower. Id. After his shower, he checked on the victim, who seemed to be sleeping peacefully, so the Petitioner decided to lie down in his own bed and take a nap. Id. The Petitioner told the officer that he awoke when the codefendant screamed that the victim was not breathing, and he immediately called 9-1-1. Id.

         Expert medical testimony established that the victim was in distress and unconscious when he arrived at the hospital. Id. at *4. The victim had injuries to his head, neck, buttocks, and genitalia; had swelling and bruising throughout his body; and had bruises around his anus. Id. A treating nurse noted that after the victim was admitted to the hospital, the codefendant stayed fifteen feet away from him. When the nurse asked the codefendant about the cause of the victim's bruises, the codefendant shrugged her shoulders and looked away. Id. The codefendant told one treating physician that the victim's bottom was red before she left to go to the commissary but that when she returned, the victim was in severe distress. Id. She told another treating physician that the victim received his eye injury four or five days earlier when he fell out of the Petitioner's jeep and hit his head on the edge of the vehicle's door. Id. A treating pediatric emergency medicine physician said the victim's symptoms at the time he was admitted to the hospital indicated he had substantial swelling of the brain, which significantly compromised his cardiovascular system. Id. at *5. This physician said the victim had multiple bruises that appeared to be more than a day old at the time of his admission. Id. He also opined, after conducting his examination, that the victim had suffered physical and sexual abuse. Id. The radiologist who read the victim's brain scan stated that the victim's brain was completely swollen, and he estimated that it had taken six to eight hours for victim's brain injury to look the way it did on the scan. Id. The radiologist said that the victim's brain scan was performed at 3:58 p.m. on February 7, 2009, and that six to eight hours before 3:58 p.m. would have been approximately 9:00 a.m. that day. Id.

         A Child Protective Services employee who photographed the victim the day he was admitted to the hospital stated that the victim had bruises on both ears as well as bruises to his right eye, forehead, nose, chin, neck, left hand, inner thighs, genitalia, and buttocks. Id. at *6. She also noted that the victim had an abrasion near his anus. Id. She said the codefendant told her that she had spanked the victim five days prior to the victim's hospitalization and had noticed that her spanking him had caused bruises. Id. The Child Protective Services employee also stated that the codefendant's demeanor was unusual because she was not crying or visibly upset. She said that during the interview, the codefendant never asked about the victim's condition and repeatedly sent and received text messages. Id.

         The medical examiner stated that the victim's cause of death was multiple blunt force injuries and that the victim's manner of death was homicide. Id. at *7. She determined that the injuries to the victim's head were the most lethal and that because of these injuries, the victim's brain swelled, which caused him to become brain dead. Id. The medical examiner noted that the bruises on the left side of the victim's face were consistent with slap or knuckle marks and that the bruises around the victim's anus and the tear at the edge of the victim's anus were consistent with penetration of the victim's anus. Id. She noted that the victim had many hemorrhages inside his eyeballs and in the nerves that connected the eyeball to the brain and that these injuries could have occurred if the victim had been forcefully shaken or if the victim's head had struck something. Id. The medical examiner said that although it was difficult to estimate when the victim received these injuries, the victim would have become immediately symptomatic to the extent that a "normal" person would have known something was wrong with the child. Id. at *8.

         Evidence was presented showing that on February 7, 2009, the codefendant telephoned the Petitioner at 10:38 a.m., 10:47 a.m., 11:00 a.m., and 11:56 a.m., that the codefendant checked out with her groceries at the commissary at 12:05 p.m., and that the codefendant then called the Petitioner at 12:14 p.m., 12:18 p.m., and 12:34 p.m. Id. at *12.

         A detective who interviewed the Petitioner twice on February 7, 2009, stated that the Petitioner cried throughout the interviews and asked to see the victim several times. Id. The Petitioner told the detective he had given the victim a couple of light swats for whining that day and that he believed the victim's injuries were from the victim slipping in the bathtub. Id. The Petitioner also said the bruises on the victim's buttocks were either from the victim learning to pull up his underwear or from the victim falling out of the Petitioner's truck several times. Id. The Petitioner said that the victim's bottom would get red when he or the codefendant spanked him but that these spankings were not hard spankings. Id. He told the detective that he did not know how the victim sustained the injuries to his head and eyes. Id. at *13. The Petitioner denied hurting the victim; he said he had never seen his codefendant hurt the victim and had only seen her give the victim spankings. Id. He acknowledged that no one had control of the victim other than the codefendant and himself. Id. The detective stated that when he interviewed the codefendant on February 7, 2009, she did not seem upset, did not cry when she was writing her statement, and did not ask about the victim until the end of her statement. Id.

         At the conclusion of the proof, the jury convicted the Petitioner of aggravated child abuse, felony murder committed during the perpetration of aggravated child abuse, aggravated child neglect, felony murder committed during the perpetration of aggravated child neglect, and aggravated sexual battery.[1] Id. at *1. Thereafter, the trial court dismissed the aggravated sexual battery conviction, merged the felony murder conviction committed during the perpetration of aggravated child neglect with the felony murder conviction committed during the perpetration of aggravated child abuse, [2] and imposed an effective sentence of life plus fifteen years. Id. On appeal, this court affirmed the Petitioner's convictions. Id. at *30.

         Post-Conviction. Thereafter, the Petitioner filed a timely pro se petition for post-conviction relief, alleging that trial counsel was ineffective in failing to present expert testimony that the Petitioner was not responsible for the victim's injuries, in failing to object to the prosecution's comment on his right not to testify during its closing argument, in failing to object to the comment made by codefendant's counsel during opening statements that the Petitioner was incarcerated, in failing to seek a severance of the Petitioner's trial from the codefendant's trial, and in failing to call codefendant's mother to testify about facts indicating that the codefendant planned to blame the victim's injuries on the Petitioner prior to the victim's death. Following the appointment of counsel, the Petitioner filed an amended petition for post-conviction relief, wherein he also alleged that trial counsel was ineffective in failing to introduce evidence that the codefendant had been investigated by Oregon's Child Protective Services regarding allegations of abusive conduct toward her other child.

         At the April 10, 2018 evidentiary hearing, the Petitioner testified that trial counsel had been appointed approximately two years prior to his trial. He said that although he and trial counsel met a "half a dozen times" prior to trial, she failed to obtain the evidence he needed to prepare his defense, which affected the outcome of his trial.

         The Petitioner said that he was married to the codefendant, the victim's mother, at the time the victim died, but he was not the victim's biological father. The Petitioner asserted that trial counsel was ineffective because she failed to present expert testimony about the victim's injuries. He noted that the victim had a slap mark on his left cheek and said, "[If] you compared [the slap mark] to [the codefendant's] hand and my hand, it would have lined up with her hand." The Petitioner stated that trial counsel never explored the issue of who was responsible for the victim's injuries, which "would have shown the abuse was clearly coming from her and not myself."

         The Petitioner said he talked to trial counsel about obtaining an expert witness to testify that he had not caused the victim's injuries. He acknowledged that he failed to present such an expert to testify at the post-conviction hearing. He also admitted that there may have been a doctor or two who testified about the victim's injuries, but he claimed that trial counsel failed to adequately cross-examine these witnesses. The Petitioner said that had trial counsel properly explored this issue at trial, the evidence would have shown that the codefendant was responsible for the victim's fatal injuries.

         The Petitioner also asserted that trial counsel was ineffective in failing to call the codefendant's mother to testify at trial. He claimed the codefendant's mother would have testified that the codefendant was mentally unstable in stressful situations. He said that although he talked to trial counsel about calling the codefendant's mother, trial counsel never subpoenaed her to testify on his behalf at trial. The Petitioner claimed that had the codefendant's mother been called to testify, her testimony about the codefendant's mental instability would have changed the outcome of the trial.

         In addition, the Petitioner said he intended to have his brother, his father, his stepmother, and his father's best friend, who had dated the codefendant after the victim passed away, to testify about incriminating statements made by the codefendant. He said all of these witnesses were initially prepared to testify on his behalf and that State funds were going to cover their travel expenses. However, after his stepmother talked to one of the prosecutors, all of these witnesses refused to testify for him. The Petitioner stated that his brother would have testified that the codefendant said it was "sort of nice not having [the victim] around any more [sic]." In addition, he said that his father would have testified about the codefendant's "mannerisms on the day of the [victim's] funeral" and about the fact that the codefendant "didn't care that her son had passed away." The Petitioner also said his stepmother had a photograph of the codefendant "partying on the day of the [victim's] funeral." Finally, he said that his father's best friend would have testified that the codefendant showed no "remorse, grief" about the victim's death, that she only showed emotion about the loss of her son when her own mother came over, and that when her mother left, "all [the codefendant] cared about was having fun." The Petitioner said he did not believe that trial counsel ever subpoenaed these individuals, even though he told her that he wanted these witnesses to testify on his behalf at trial. The Petitioner acknowledged that none of these witnesses were present to provide testimony at his post-conviction hearing.

         The Petitioner maintained that trial counsel failed to object when the State commented on his right to remain silent and when codefendant's attorney informed the jury that he was incarcerated at the time of trial. However, he did not describe the substance of these comments, did not identify when these comments were made, and did not explain how trial counsel's failure to object to these comments changed the outcome of his trial.

         In addition, the Petitioner argued that trial counsel was ineffective in failing to seek a severance of his trial from his codefendant's trial. He said trial counsel never filed a motion to seek a severance and actually told him there was no need for a severance. He admitted that he never asked trial counsel to request a severance but claimed that he "didn't know . . . it was going to be more beneficial for [him][.]" He also acknowledged that the trial court denied the codefendant's request for a severance. The Petitioner said after the trial, he learned from prison legal aid that he should have obtained a severance because it would have allowed him to testify about the codefendant's statement that it was nice not to have the victim around anymore. The Petitioner claimed he was told during a recess at trial that he could not introduce this incriminating statement against the codefendant because the codefendant was unwilling to testify at trial. He stated that when he asked trial counsel about presenting testimony about the codefendant's statement at trial, trial counsel told him that it "would cause a mistrial." The Petitioner said it was his understanding that had his trial been severed from the codefendant's, he could have presented this evidence.

         The Petitioner also asserted that trial counsel was ineffective in failing to obtain records from Child Protective Services in Oregon regarding the codefendant's abuse of her other child. He claimed that this "child apparently had gone through abuse that was very similar to what had happened [with the victim] in Tennessee." The Petitioner said that although the abuse of this other child did not result in death, the abuse had the same characteristics as the victim's abuse and "would have tremendously helped [his] case." He said he informed trial counsel of these Oregon records, but he did not believe counsel made any attempt to obtain them. The Petitioner admitted that although he had subpoenaed Oregon's Department of Children's Services in an effort to obtain these records for the post-conviction hearing, he was unable to obtain them because they were sealed. He said he was not aware of trial counsel interviewing any witnesses ...


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