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State v. Weems

Court of Criminal Appeals of Tennessee, Nashville

January 10, 2020


         Session October 16, 2019

          Appeal from the Criminal Court for Davidson County No. 2015-B-1508 Monte Watkins, Judge

         Shalonda Weems, Defendant, was indicted in a two-count indictment for aggravated child neglect and felony murder in connection with the starvation death of her six-month-old child. The jury found Defendant guilty of aggravated child neglect and reckless homicide. Defendant filed a Tennessee Rule of Criminal Procedure 29(e) Motion for Judgment of Acquittal ("the Motion") as to both counts. Following a hearing, the trial court granted the Motion in part, set aside the guilty verdict for aggravated child neglect, and entered a judgment of acquittal. The court denied the Motion as to the reckless homicide verdict and entered a judgment of conviction. The State appeals claiming that the trial court erred in granting the Motion. After a thorough review of the record and applicable law, we affirm the trial court's judgment of acquittal for aggravated child neglect.

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

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Pamela S. Anderson, Assistant District Attorney General, for the appellant, State of Tennessee.

          Michael A. Colavecchio, Nashville, Tennessee, for the appellee, Shalonda Weems.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr. and Timothy L. Easter, JJ., joined.



         Factual and Procedural History

         Defendant's child, Kar'mn J'Qua Weems ("Kar'mn"), was born on September 5, 2004. Defendant and Kar'mn were discharged from the hospital on September 7, 2004. Kar'mn died on March 3, 2005. Defendant was interviewed by detectives of the Metropolitan Nashville Police Department (MNPD) on March 3, 2005, October 21, 2005, and July 7, 2014.

         On June 23, 2015, more than ten years after Kar'mn's death, the Davidson County Grand Jury indicted Defendant for aggravated child neglect in violation of Tennessee Code Annotated section 39-15-402 and first degree felony murder during the perpetration of or attempt to perpetrate aggravated child neglect in violation of Tennessee Code Annotated section 39-13-202(a)(2). The case was tried by jury on September 25 and 26, 2018. The trial court denied Defendant's motion for judgment of acquittal at the close of the State's proof, although the trial court expressed concern about "the knowingly aspect" of both counts. At the conclusion of the proof, the case was presented to the jury on charges of aggravated child neglect and second degree murder.[1] The jury returned a guilty verdict of aggravated child neglect and reckless homicide, a lesser-included offense of second degree murder.[2]

         Defendant timely filed a written Motion for Judgment of Acquittal pursuant to Tennessee Rule of Criminal Procedure 29(e)(1). The Motion was argued on October 31, 2018. In its oral ruling, the trial court noted that it had not accepted the jury's verdict in its role as thirteenth juror. The trial court found that there was insufficient evidence to prove that Defendant acted "knowingly" and set aside the verdict of guilty of aggravated child neglect. The court denied the Motion as to reckless homicide and confirmed the jury's verdict.

         In its written order entered December 5, 2018, the trial court stated:

After careful consideration in observing the evidence in the light favorable to the prosecution, the [c]ourt does not accept the verdict in [c]ount [o]ne for insufficient evidence regarding Defendant's mens rea of "knowing" element of T[ennessee] C[ode] A[nnotated] section 39-15-401 and [section] 39-15-402.

         Summary of Trial Testimony and Evidence

         Testimony of Detective Joseph L. Cooper

         MNPD Detective Joseph L. Cooper, who was assigned to investigate Kar'mn's death, was the first witness called by the State.[3] By the time Detective Cooper arrived at Defendant's home, Kar'mn had been transported to Vanderbilt University Medical Center ("VUMC"). The detective proceeded to the hospital where he spoke to a social worker who identified Defendant as Kar'mn's mother.

         Detective Cooper spoke with Dr. Olivia Titus who had spoken to Defendant. According to the information obtained from Defendant by Dr. Titus, Defendant "had been sick for the last couple of days with the flu and was recovering from that illness." Kar'mn "had also been ill and Defendant had been giving [her] Children's Tylenol." Defendant "fed [Kar'mn] formula the night before . . . around [eleven] o'clock" and put Kar'mn to bed right after she fed her. Defendant checked on Kar'mn around 3:00 a.m. and 5:00 a.m., and Kar'mn "appeared to be normal at that point." Defendant woke up around 6:30 a.m. and checked on Kar'mn around 7:15 a.m., at which time Kar'mn was lying on her back "barely breathing" and looked "blue and weird." Defendant telephoned her mother and told her Kar'mn was not breathing. Defendant's sister, who was present at Defendant's mother's home, called 9-1-1.

         Detective Cooper obtained medical releases from Defendant and contacted the Department of Children's Services concerning Defendant's two other children. He obtained consent to search Defendant's home where he took photographs and collected various items, including "a blanket, an infant bed cover, a circular infant pillow, Kleenex, a bottle with formula, an empty baby bottle, a white shirt[, ] and a[n] infant bed sheet." Detective Cooper next interviewed Defendant. The audio recording of that interview was played for the jury, and the photographs taken by Detective Cooper were published to the jury. Detective Cooper also interviewed Laura Owens, the manager of Creative Academy, the daycare provider for Kar'mn and Defendant's two other children.

         Detective Cooper interviewed Defendant again on October 21, 2005, and questioned her about whether the formula she gave Kar'mn had been watered down. He told Defendant that the autopsy report listed the cause of death as starvation and malnutrition. Detective Cooper said Defendant did not seem concerned or surprised by the autopsy findings. The digital versatile disc ("DVD") and transcript of the March 3, 2005 audio interview and the October 21, 2005 audio/video interview were admitted for identification.

         On cross-examination, Detective Cooper stated that the medical examiner told him on March 7, 2005, that the manner of death had been classified as a homicide and that Kar'mn had been "suffering from pneumonia and a thyroid disorder."

         Testimony of Laura Owens

         Laura Owens testified that she was the owner of Creative Academy and had worked there for forty-five years. She said Kar'mn had attended Creative Academy in 2005 and that she had talked to the police about this case shortly after Kar'mn's death. She said Creative Academy does not provide formula for infants and that the parents are expected to prepare bottles at home and bring them for their children. She said Defendant brought water and juice for Kar'mn, and she told Defendant that "[Defendant] was feeding her baby wrong" and that the "baby wasn't supposed to have juice and water, the baby should have a formula." She said the workers at Creative Academy would typically feed an infant a bottle every two to three hours. Ms. Owens said that Defendant kept her three children "all clean and neat." Ms. Owens was shown two autopsy photographs of Kar'mn. She said Kar'mn never came to Creative Academy looking like she did in the photographs and that, if she had, "we would have had to report that." On cross-examination, Ms. Owens agreed that Defendant brought bottles filled with formula to Creative Academy. Ms. Owens said that Defendant was never told she could not bring Kar'mn because she was not providing enough formula. When questioned about the last time she saw Kar'mn, Ms. Owens answered:

Well, the last time I saw her was in her little pink boxers there, but before she was trying to bring her to the daycare, the baby was sick, and we did not accept her, and then the next thing we knew, the baby had died.

         Ms. Owens thought the last day she saw Kar'mn was Friday because "like two or three days later the baby was deceased."

         Testimony of Detective Selene Julia

         Selene Julia, a detective with MNPD, assisted Detective John Grubbs, who in 2013 was assigned to investigate Kar'mn's death. As part of the investigation, she assembled and reviewed the VUMC medical records. Without objection, the records were admitted into evidence, and Detective Julia testified from them.

         The record for September 7, 2004, showed that Kar'mn was born on September 5, 2004. She weighed six pounds, ten ounces. Defendant was advised how to enroll in WIC[4] and TennCare. Defendant also enrolled in the Healthy Start Program that included home visits by nurses. She was already receiving aid from Families First and food stamps. Defendant was provided pamphlets and instructed about bottle-feeding and breastfeeding. Defendant elected to breastfeed, and the nurse reported that the baby "latched." Defendant demonstrated to medical personnel that she could properly feed Kar'mn, and the nurses reported that Kar'mn tolerated feeding well before they were discharged on September 7, 2004.

         On September 10, 2004, Kar'mn presented to VUMC for a newborn follow-up visit. Defendant reported that she had been breastfeeding for three days and that Kar'mn was spitting up after feeds. The medical record stated under "nutrition":

Breast Feeding: per mom, latches well, unsure whether milk has come in, reports that she can see milky fluid going into infant's mouth, however her breast have not started to feel engorged. Does not have breast pump. Formula feeding: Brand of formula: Soy (?) in purple and gold can. WIC participation: yes.

Kar'mn was found to be jaundiced and dehydrated. Defendant was instructed to give Kar'mn soy formula.

         On September 13, 2004, Kar'mn presented to VUMC for the second newborn follow-up visit. The report showed that Kar'mn had been feeding and stooling well since her last appointment and had gained five ounces. Her "general appearance" was "well[-] developed, well[-]nourished; alert and vigorous."

         On September 23, 2004, Kar'mn was presented to VUMC for her two-week checkup. She weighed 6.13 pounds. The notes from the checkup stated:

Interval history and ROS update: Kar[']mn has been seen twice in newborn follow-up clinic for weight and bilirubin checks.[5] She has lost approximately [ten percent] of her birth weight and has not shown any gain at this point. Mom says that she takes [five to six ounces] every [two to three] hours but on further questioning this seems unlikely. Mom says that she sleeps through the night and really only takes [three to four] feeds during the day. She is a vigorous feeder and has no respiratory distress with feeds; takes them in [ten to fifteen] minutes.
Mom has her Good Start with her today and can demonstrate how to mix the formula correctly. With her last baby she admitted to occasionally adding extra water to make the formula go further, but denies doing that now.

         A note from VUMC dated September 30, 2004, stated that the infant "came in for a weight check today" and weighed six pounds and eleven ounces.

         On November 24, 2004, the infant was presented to VUMC for her two-month checkup. She weighed nine and a half pounds and her "general appearance" was "well[-]nourished[, ] alert[, ] and vigorous." The "impression" was a well infant, normal growth and normal development. The "plan" was to "[c]ongratulate[] mom on Kar[']mn's excellent growth. Mom has done an excellent job given [her] young age, and having three babies all under the age of [four]."

         Defendant took the child to the VUMC Emergency Department on December 7, 2004, with complaints of a "five-day history of diarrhea without emesis."[6] The note said that she had a viral illness causing diarrhea. The diagnosis was "[e]nteritis without dehydration[, ]" and the note stated no further "intervention" was needed.[7]

         On January 26, 2005, the infant presented at VUMC for a health maintenance visit. She weighed 11.62 pounds and her "general appearance" was listed as "well[-]developed, well[-]nourished: alert and vigorous." The "impression" was a well infant, normal growth and normal development. Kar'mn received her scheduled immunizations.

         The March 3, 2005 VUMC report made on the day of Kar'mn's death listed the chief complaint as "apnea, "[8] after which the report stated:

HISTORY OF PRESENT ILLNESS: Kar['mn] is a [five]-month-old female with no significant past medical problems, who per mom was found in her crib this morning blue and not breathing. Mom states that she was playful after eating and drinking well yesterday. She gave her a dose of Tylenol for her fever last night. She went to bed per usual. This morning she went into her room to wake her up and she found she was not breathing and appeared blue. She states that she called her mother, who then called the police. Upon EMS's arrival, they stated she was apneic with no spontaneous respirations and no pulses. They intubated her, placed an IO.[9]En route they gave four rounds of epinephrine and Atropine and had documented PEA[10] on the cardiac monitor. She had no pulses with CPR or without CPR.
The diagnosis was "[c]ardiopulmonary arrest." The progress note stated:
Referred today by charge nurse regarding child's family in need of support given fact child had just expired. I met with mother, two grandmother[s] and several other family members and provided support and crisis intervention.
The mother is [nineteen] years old and has two other children ages [two] and [one]. The father of [Kar'mn] is in prison. Mother asked that I locate Ramona Shelton, the baby's paternal grandmother, at her workplace and ask her to come here. I did reach the grandmother who did come and provide support to the family. I did not ask the mother questions about how she found child as detectives were already involved at this point. I assisted in reaching incarcerated family members via chaplains at the local prisons. Karl Archibald, the baby's father[, ] was one of these and he was able to talk with the mother and his mother via phone.

         At the conclusion of the direct examination of Detective Julia, the DVD of Defendant's March 3, 2005 audio interview was played for the jury.

         March 3, 2005 Audio Interview of Defendant

         The March 3, 2005 interview was conducted by Detective Cooper and Detective Tom Bowden at VUMC. Defendant stated that, in addition to Kar'mn, she had two boys both under the age of three. She said Kar'mn's father had been in custody for about six months. She said that on Wednesday, March 2, she and her three children were at home all day. She had been sick. She woke up close to noon, and the family watched television and ate ice cream. She "gave [Kar'mn] milk, cereal, and baby food. Then gave her a water bottle, gave her a bath, and they laid down for a nap" around 2:00 p.m. Kar'mn woke from her nap around 4:40 p.m. They watched television, and she said Kar'mn "roll[ed] all over the bed." Defendant said that Kar'mn was "normal all day" and that "she ate well." She fed Kar'mn a bottle around 6:00 p.m. and a bottle with milk and cereal around 8:30 p.m. They watched American Idol and then went to bed around 9:15 p.m. Kar'mn was in her crib, and the two boys were in bed with her. She checked on Kar'mn around 1:00 a.m. She went to the bathroom around 3:00 a.m., and Kar'mn was still sleeping so she went back to bed. She woke up at 6:30 a.m. but went back to bed. She got up again around 6:50 a.m. and went to the kitchen to fix the two boys some orange juice. She then checked on Kar'mn.

         The following dialogue concerned what occurred after she checked on Kar'mn:

DETECTIVE COOPER: Okay. So, you run in there and found her and she didn't appear to be breathing?
DEFENDANT: She was like barely, barely, barely, (demonstrates shallow breathing) like a very little teeny breath[], breaths.
DETECTIVE COOPER: And, uh, she started taking on a blueish color? DEFENDANT: She looked[] just funny. I don't know, she-DETECTIVE COOPER: Okay. Well, I understand. We, [k]now she laying on her, how was she laying? On her back? Face up?
DEFENDANT: Um, she had flipped on her back. She be rolling in her bed.
DETECTIVE COOPER: Okay. So when you put her to bed she normally sleeps on her, on her?
DEFENDANT: On her back. Well, yeah, on her back.
DETECTIVE COOPER: When, when you, uh, checked on her like at five o'clock, was she on her back or on her stomach?
DEFENDANT: On her back.
DETECTIVE COOPER: Okay. And then when you went in there and checked her at seven-thirty she was, she was on her back.
DETECTIVE COOPER: Okay. Uh, so you called your mother?
DETECTIVE COOPER: Okay. Um, is there anything else that you can think of? Is, was there anything you can think of, was there anything about the child yesterday that, sort of, you thought was unusual or odd about, about her behavior or the way she was breathing, or?
DEFENDANT: She was fine. I don't understand.
DETECTIVE COOPER: So, and when was, when was the last, the last time that we, that she was fed? I know you gave her a bottle at eleven. Did you give her another one at three?
DEFENDANT: No, she wasn't up at three. I said I checked on her at three.

         Testimony of Dr. Amy Hawes

         Dr. Amy Hawes, a forensic pathologist employed by the Knox County Regional Forensic Center, was qualified as an expert in forensic pathology.[11] She explained that part of her duties as a forensic pathologist is to determine and report on the cause and manner of death. She stated that the cause of death is "the injury or illness that sets into motion the change of events that lead to death" and that the manner of death "refers to the circumstances in which someone has died."

         Dr. Hawes said she performed an external examination, which showed that Kar'mn weighed ten and a half pounds, her lips were cracked and dried, her skin was slightly doughy, her eyes were slightly sunken in her head, her hair was sparse, and her anterior fontanel was slightly sunken. She opined that her examination showed physical characteristics that were consistent with a child suffering from dehydration and malnutrition.

         Dr. Hawes said that she performed an autopsy which she described as "an extensive surgical procedure where you examine the body" and document the findings. Dr. Hawes said the autopsy revealed that there was sparse fat around Kar'mn's bowels, abdomen, and adrenal glands, which was indicative of prolonged malnutrition. The gastrointestinal tract from the stomach to the rectum was empty. A test of the vitreous fluid from the eyes indicated that Kar'mn's sodium and chlorine levels were high, indicating dehydration.[12]

         Dr. Hawes's diagnosis was:

[Kar'mn] had severe dehydration. There was evidence of acute and chronic malnutrition, as evidenced by, there was the absence of food and feces in waste products, in other words there was no feces in the colon. The thymus gland [was] shrunken or atrophied[.]
She had atrophy or loss of a lot of the fat around some of her internal organs, and she had fat in her liver cells where normally in an infant there really should not be any fat in the liver cells.

         In response to hypotheticals presented by the State, Dr. Hawes opined that her autopsy findings were not consistent with a child that "had been fed cereal, milk and apple[]sauce within [twenty-four] hours of death . . . unless there was some indication that this child was having a lot of diarrhea." She stated that, even with diarrhea, she "would expect to see something at least in the lower gastrointestinal tract[.]" Dr. Hawes opined that her findings would not be consistent with a child who had been fed formula a few hours prior to being found unresponsive and that she would not expect a child "who had nothing in its gastrointestinal tract" to be "rolling back and forth in the bed and acting normal" only hours before the child died.

         Based on her external examination and the autopsy, Dr. Hawes's opinion was that the cause of death was "dehydration and malnutrition" and that a contributing cause of death was "interstitial pneumonitis." She said the "manner of death was classified as homicide" and the "circumstances of death were neglect."

         On cross-examination, Dr. Hawes agreed there were no signs of trauma. She also stated that she would "never make the diagnosis of dehydration just based on an external examination alone." Concerning any history of Kar'mn being sick shortly before her death, the following dialogue occurred during defense counsel's cross-examination of Dr. Hawes:

Q. So you wouldn't know if the child had been sick the week before?
A. I wasn't provided that history, so, again, as part of an autopsy, and determination of final cause of death, we ask for history, and that was not provided to me.
Q. Or even just days before obviously, since you didn't have something from the week before, you didn't have anything from the few days before?
A. Not medical records, no. I had a history from other people, but not medical records, so.
Q. Right. So you don't know if the child had been sick on Monday? The child died on Thursday, you don't know if the child had been sick on Monday?
A. I wasn't provided with that information. I was told that she had a bit of a fever, so.
Q. But you didn't have any medical records about that though to compare?
A. Right, but there's a difference again to just be clear between someone being sick and having medical records, obviously someone can be sick and you don't have medical records necessarily, we don't go to the doctor every time we're sick. But to clarify, yes, I was told that the child did have a fever I believe a day or so prior to death, but no, I don't have any medical records from that time.
Q. So you couldn't consider any medical issues the child had a few days or even a week prior to the baby's death in your autopsy conclusions?
A. Well I would consider it because, again, we elicit history, and so I take in the account any history that I've been provided, so yea, I would take it into account.
Q. All right. But you didn't have any -- you only had some information that the child may have had a fever a few days before?
A. Sure.
Q. That's the only recent, as in a week or so before the child's death, that you had for purposes of preparing the autopsy?
A. To the best of my recollection, it's been many years ago, but to the best of my recollection, yes.
Q. Now, if a child or a person for that matter consumes or has a liquid or food put in their mouth, and even baby swallows a little bit of it, but either spits it up in the case of where they just had it in their mouth or if they throw it up, if it got down into their stomach, you wouldn't be able to see that in the autopsy if it had happened a day or two before?
A. Correct.

         Autopsy Report

         The autopsy report from which Dr. Hawes testified was entered as an exhibit. The "final anatomic diagnosis" of the autopsy report showed:

A. Severe dehydration.
B. Acute and chronic malnutrition:
1.Absence of food and waste products in gastrointestinal system.
2.Marked involution of thymus gland.
3.Atrophy of visceral fat.
4.Macrovesicular steatosis of the liver.

         The autopsy report stated the cause of death was "[d]ehydration and malnutrition," the contributing cause of death was "[i]nterstitial pneumonitis," the "manner of death was "[h]omicide," and the circumstances of death was "[n]eglect." The infant weighed ten and a half pounds at the time of the autopsy.

         Testimony of Dr. Timothy Robert

         Dr. Timothy Robert, Chief Science Officer of Aegis Corporation (Aegis), explained that Aegis is a laboratory that primarily performs mesenteric toxicology testing.[13] Dr. Robert explained that, in the past, Aegis performed postmortem toxicology testing for the Davidson County Medical Examiner's Office and medical examiner offices in other counties in Tennessee. In March of 2005, the Davidson County Medical Examiner's Office submitted a specimen of vitreous fluid for testing. Aegis analyzed the fluid to measure sodium, chloride, and blood unit nitrogen. The results were sent to Dr. Hawes at the Davidson County Medical Examiner's Office. On cross-examination Dr. Robert agreed that the Aegis' laboratory was not certified until 2008.

         Testimony of Detective John Grubbs

         Detective John Grubbs testified that he had worked at MNPD for twenty years. He explained that, in 2013, he worked in the Youth Services Division where he investigated "child neglect and deaths of children twelve years of age and under." He said that, in 2013, his superior officer assigned Kar'mn's case to him. Detective Grubbs began by reviewing everything in the case file, including the two recorded interviews Detective Cooper had with Defendant. He testified that he noticed that Defendant displayed a lack of emotion when Detective Cooper told her the cause and manner of death. He said that there were discrepancies in the times during the day when she fed Kar'mn. Detective Grubbs interviewed Defendant's mother, Velina Dixon, and Defendant's sister, Shameka Dixon. He reviewed the phone records of Defendant and listened to the 9-1-1 call. He said there was a call from Defendant's phone to her mother's phone at 7:38 a.m. and that Defendant's sister called 9-1-1 at 7:39 a.m. He said Defendant stated that she woke up around 6:30 a.m. but went back to bed and woke up again at 7:15 a.m. and went to check on Kar'mn. Defendant stated that she did not realize there was something wrong until around 7:30 a.m.

         Detective Grubbs contacted Defendant and arranged for another interview. Detectives Grubbs and Julia interviewed Defendant on July 7, 2014. After the interview, Detective Grubbs obtained an indictment and arrested Defendant. As she was being arrested, a male opened the door and asked what this was pertaining to, and Defendant answered "that baby thing."

         On cross-examination, Detective Grubbs agreed that no other investigator from MNPD had contacted Defendant during the nine-year time span since the last interview. He said Defendant claimed in the 2014 interview that Kar'mn had vomited but that vomiting never came up during the March 2005 interview. When questioned about Defendant saying Kar'mn had thrown up in the second 2005 interview, Detective Grubbs said, "She may have. I don't remember on the 2005." The following dialogue is from defense counsel's cross-examination of Detective Grubbs concerning Defendant's October 21, 2005 interview:

Q. . . . Now, would you be surprised if she had mentioned if [Defendant], in the few days prior to March 3[], 2005, had mentioned she was sick seven times?
A. If it was seven times, it was seven times, I didn't count. I didn't count the number of times she mentioned she was sick.
Q. But you wouldn't disagree with that at this point?
A. No.

         Detective Grubbs agreed that he was in the courtroom when Ms. Owens testified that she had not allowed Kar'mn to come to daycare because she was sick a few days before her death. Concerning Kar'mn being sick, Detective Grubbs also agreed that the September 10, 2004 medical record indicated that Kar'mn had problems feeding and was spitting up, that the September 13, 2004 medical record showed that she was dehydrated, and the December 7, 2004 medical record showed that Defendant took Kar'mn to the emergency room with a five-day history of diarrhea. Detective Grubbs agreed that Defendant stated numerous times during ...

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