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Thomas v. State

Court of Criminal Appeals of Tennessee, Knoxville

November 1, 2019


          Session July 23, 2019

          Appeal from the Criminal Court for Washington County No. 41091 Lisa Rice, Judge.

         The Petitioner, Christina Jones Thomas, was convicted by a jury of especially aggravated robbery and especially aggravated kidnapping, for which she received an effective sentence of eighteen years' imprisonment. State v. Christina Jones Thomas, No. E2013-01531-CCA-R3-CD, 2014 WL 3440687, at *1 (Tenn. Crim. App July 14, 2014), perm. app. denied (Tenn. Nov. 20, 2014). The Petitioner subsequently filed a petition seeking post-conviction relief, arguing that trial counsel was ineffective on multiple grounds, including (1) failure to secure an expert witness for trial; (2) failure to seek scientific testing of evidence presented by the State and failure to challenge such evidence; (3) failure to present a plea offer to the Petitioner; (4) failure to challenge and remove a juror whom the Petitioner knew and felt would be biased against her; (5) failure to impeach the victim about inconsistencies in his statements; (6) failure to address merger of the underlying offenses; and (7) failure to question the victim or present evidence of other injuries sustained by the victim that could have alleviated the seriousness of the Petitioner's crimes. The trial court denied relief by written order, which the Petitioner now appeals. In addition, the Petitioner also argues that she is entitled to a second post-conviction hearing because post-conviction counsel was suspended from the practice of law by the Tennessee Supreme Court shortly after the post-conviction hearing. Following our review, we affirm.

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

          Cameron L. Hyder, Elizabethton, Tennessee, for the Petitioner, Christina Jones Thomas.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Kenneth C. Baldwin, District Attorney General; and Erin McArdle, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. MCMULLEN, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.



         This court provided an extensive factual recitation supporting the Petitioner's convictions in the opinion on direct appeal, and it is not necessary to repeat it for purposes of this appeal. As relevant here, the proof at trial established that on April 9, 2005, the Petitioner and her co-defendant husband beat and robbed the victim, the person from whom they rented a mobile home. The Petitioner had asked the victim to come to the mobile home to pick up the rent and to cash a recently received income tax check. When the victim entered the trailer,

[T]he co-defendant started hitting the victim in the head, and the victim fell forward. The co-defendant continued to hit him multiple times. During the beating, the co-defendant placed his knee in the victim's back and asked the [Petitioner] to "come here and help [him] hold" the victim. The [Petitioner] came to assist. She also removed the victim's wallet from his pants at the urging of the co-defendant. According to the victim, the co-defendant continued to hold him down and beat him with "a club of some kind[, ]" and while this occurred, the [Petitioner] hit him twice in the head with a hard object, leaving two puncture wounds. [The victim] was not sure of the object the [Petitioner] used to inflict these blows, but he was sure it was not a fist. The victim testified that he had between $4, 200 and $4, 500 in cash and $900 in checks inside his wallet when it was taken from him. The victim stated that he was not armed during the incident, although he often carried a weapon.

Id. at *2. The victim testified that he did not lose consciousness during the beating, and that the Petitioner "tied his hands behind his back, tied his feet together, stuffed a dirty sock in his mouth, and tied something around his head." Id.

         After they left, the victim called the police and was later treated at the hospital for the injuries to his head. Id. at*3. According to the victim, a nurse stated that she could "see all the way down in [side his] head." Id. Thereafter, a doctor put seventeen "clamps" in the victim's head to close the hole. Id. The victim testified that his head hurt "a lot" while he was healing from the beating. Id.

         Upon searching the mobile home, officers found "drops of blood on the floor, blood stains on the couch, a hammer, a rope, a belt, and a 'child's bat' in the living room and kitchen area." Id. The Petitioner and the co-defendant husband were eventually apprehended in Colorado and extradited to Tennessee. Id. A criminal investigator interviewed the Petitioner, during which she stated:

that the victim "grabbed [her] breast, [and] he offered to handle it this way or that way[, ]" so she "hit him," but would not "say with what," only that she "hit him [be]cause she wanted him to stop." The [Petitioner] said that they fled because the victim had placed a "hit" on them, that they had two or three hundred dollars on them when they left the trailer, that the victim had tied himself, and that they went back to check on him "but [were] afraid he'd shoot [them]."


         The co-defendant testified at the Petitioner's trial, in relevant part, as follows:[1]

[T]he [Petitioner] informed him that the victim had propositioned her, that he had the [Petitioner] call the victim to come to the residence so that he could confront the victim, that the family had no plan to move to Arkansas that day, and that they intended on paying rent to the victim that day when the victim came to the mobile home. [He] also claimed that the victim "got hostile" with him once the victim was inside the trailer and that he became angry and "jumped on" the victim. According to [the co-defendant], he only hit the victim three times with fists; the [Petitioner] was not involved in the assault; he never saw the [Petitioner] take the victim's wallet; she had no money until [he] gave her some once they were driving away in the car, and he, not the [Petitioner], was the one who tied the victim up before they left.

Id. at *4. The co-defendant also testified that that they obtained $3, 000 from the victim that day. Id.

         Nearly two years later, in January 2007, the victim went to the hospital with severe headaches, stomach sickness, unsteady gait, difficulty understanding and responding to words, slow registration and response time, and a slight decrease in his ability to use his right upper extremity. Id. His doctor, classified as an expert in the field of neurology at trial, testified that the victim required brain surgery due to a "[subdural] hematoma" or bleeding in his brain. Id. The victim had told his doctor of the beating "twenty-two months[']" earlier at the hands of the defendants, stating to his doctor that "he had been hit with a pistol multiple times in the back of the head." Id. Since the beating was the only known traumatic event the victim suffered sufficient to produce this injury, the expert opined, to a reasonable degree of medical certainty, that the beating was the cause. Id. Although the victim had been in an intervening car wreck, the wreck was minor and, in the expert's opinion, it did not cause the subdural hematoma. Id.


         The Petitioner subsequently filed a timely, pro se petition for post-conviction relief, alleging two grounds for relief: (1) that the evidence was insufficient to convict her and (2) that she received ineffective assistance of trial counsel. As part of her ineffective assistance of counsel claim, the Petitioner alleged that counsel was ineffective in the following ways: (1) failure to protect the Petitioner's rights during the plea bargain stage; (2) failure to secure expert medical testimony; (3) failure to conduct DNA and scientific testing on the alleged weapons; and (4) demonstrated deficient performance during voir dire, resulting in a biased juror being impaneled. On March 7, 2016, the post-conviction court entered a preliminary order on the Petitioner's petition for post-conviction relief, dismissing the insufficiency of the evidence claim because the Petitioner raised that issue on direct appeal but finding that the Petitioner had presented a colorable claim for relief on the ineffective assistance of counsel claim. The post-conviction court also appointed counsel to represent the Petitioner at the post-conviction hearing. Petitioner's counsel filed several motions, including an amended petition for post-conviction relief, striking the Petitioner's initial claim of insufficiency of the evidence and reasserting the Petitioner's claim for ineffective assistance of counsel. The following claims were added to the amended petition: (1) failure to utilize the evidence to argue that the offenses should have merged; (2) failure to investigate and/or present to the jury an alternative cause of the victim's injury contained in the victim's medical records; (3) failure to object to "inflammatory" hearsay statements made by the victim at trial; and (4) failure to impeach the victim at trial based on prior inconsistent statements. The State filed its response on May 9, 2017, denying these allegations.

         The post-conviction court held an evidentiary hearing on June 5, 2017. The Petitioner testified that "during her trial phase and prior to [her] trial," she was given a plea agreement offer of twelve years and one day at one-hundred percent. She explained that she accepted this offer, but that the trial judge "pulled" the offer when the Petitioner told him that "if it was just solely up to [her], then [she] probably would have went [sic] to trial." Following this hearing, the Petitioner was appointed new counsel, who represented her throughout trial and on appeal. She said that she and trial counsel discussed a "couple of different things," but nothing was "affirmed completely." She stated, "[R]ight before we went to trial, there was a ten (10) at thirty (30), he thought that maybe he could get and it didn't go through, and I believe maybe a ten (10) at one hundred (100), I'm not quite sure. I think that was the second." The Petitioner testified that she did not believe that she had an opportunity to accept either of those offers and that she would have been willing to accept the offer of ten years at one-hundred percent.

         The Petitioner also testified that trial counsel was ineffective for failing to present expert testimony at trial. She stated that previous counsel looked into this issue extensively, consulting with two different expert witnesses about the victim's injuries. She said she "found out that being indigent that the State, [they] could have petitioned the State for funds for an expert witness to be brought in to-for [sic] testimony on [her] behalf because there was instances looking through the records that [she] had found that it was questionable to [her] and also questionable to-there's [sic] two doctors that were spoken to, two neurologists[.]" She believed that there were inconsistencies in the State's expert witness's conclusions that needed to be looked into a "little further." She stated that she went through the victim's medical records with two of her prior attorneys and found two CAT scans and two MRIs. She testified that she discussed her desire to obtain an expert witness with trial counsel, and trial counsel responded, "[T]he State doesn't typically like to give funds for those kinds of things[.]" She stated that this issue remained a "sticking point" between her and trial counsel throughout trial.

         Next, the Petitioner was aggrieved that no scientific or biological testing was conducted on the alleged weapons that were used on the victim; therefore, she theorized that, "[i]t was circumstantial evidence that was introduced to the jury with no testing, no nothing." She stated that her co-defendant testified that he hit the victim with his fist twice, but "at trial, they handed the jury a hammer and a claw hammer and a baseball bat and said that [she] hit them with one of those things." She believed that this was the reason that the jury found her guilty. She testified that she understood the importance of the weapon to be tied to the "aggravated" and "serious bodily injury" elements of the crimes with which she was charged. She stated that the perception of the weapons "was horrible." She believed that the evidence could have been suppressed if trial counsel had submitted it for scientific or biological testing. She stated that she discussed this issue with trial counsel but "[I]t was just not done."

         The Petitioner also testified that she knew a woman on the jury who worked at the detention facility as a nurse and whose husband the Petitioner had previously worked with at a car dealership. The Petitioner stated that she and the juror's husband "weren't on great terms[, ]" and she "didn't want that relationship brought into the jury." She stated that the trial judge asked this juror if she knew the Petitioner and if she could be unbiased in coming to a conclusion, and the juror responded that she could. The Petitioner then claimed that she had addressed this concern with trial counsel during jury selection, while they still had strikes available. She claimed that trial counsel believed that this juror would be beneficial to the defense "because she was a nurse and…she may be able to have knowledge [sic] of the neurological part of the surgery and she may be…beneficial as far as giving information to the jury at that point."

         The Petitioner testified further and explained her belief that she should not have been charged with both crimes of especially aggravated kidnapping and especially aggravated robbery. She believed the convictions should have been combined, and she was aggrieved by trial counsel's failure to address this issue. She also said that trial counsel never challenged this issue by impeaching the victim about the inconsistent statements that he gave about the attack. She stated that her discussion with trial counsel about this issue got "lost in translation somewhere along the way."

         The Petitioner also believed that the cause of the victim's brain surgery was something other than the offense. She stated that while looking through the victim's medical records, she discovered that the victim was hospitalized in 2006 after being "raided by the DEA" and "slammed on the floor." She believed that, based on the expert medical witness's testimony, this "swift movement" could have caused the victim's brain to bleed. She stated that trial counsel had access to these records during her trial, but he did not present this as an "alternative cause" for the victim's injuries. She noted, however, that trial counsel did cross-examine the victim about a car wreck that he had been in a few weeks prior to his brain surgery.

         The Petitioner believed that trial counsel should have "intervened" while the victim was testifying. She stated that the victim's testimony had changed multiple times, specifically from the police report made at the time of the offense to the preliminary hearing and throughout trial. She said that when the "conflicting testimony came out in trial," trial counsel did not "question[] [the victim] about any conflicting previous statements." The Petitioner explained that she understood that her defense at trial would be that her co-defendant had been the only one to hit the victim and that the victim had previously harassed other women. The Petitioner testified that she was prejudiced by the totality of trial counsel's actions and that she would have "ple[d] out to a lot less time."

         On cross-examination, the Petitioner testified that she recalled a "possibility" of a conversation regarding a plea between trial counsel and the State before trial. She stated that this conversation took place shortly before trial and that, on the Sunday before her trial, she "was under…the indication that…we would probably be all right from what [she] understood because of [her] co-defendant's testimony…and another witness that ...

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