Misty Jane Brunelle v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 18, 2014 Session

MISTY JANE BRUNELLE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Greene County

No. 11CR323 John F. Dugger, Jr., Judge

No. E2014-00292-CCA-R3-ECN - Filed December 26, 2014

Petitioner, Misty Jane Brunelle, was convicted of three counts of aggravated child abuse in

relation to broken bones sustained by her infant daughter. Her convictions and sentences

were affirmed on appeal. State v. Misty Brunelle, E2006-00467-CCA-R3-CD, 2007 WL

2026616 (Tenn. Crim. App. July 13, 2007), perm. app. denied (Tenn. Oct. 22, 2007)

(“Brunelle I”). Petitioner then filed a post-conviction petition, which was denied. This Court

affirmed the denial of the post-conviction petition on the basis of ineffective assistance of

counsel, but reversed the lower court’s determination that no newly discovered evidence

existed. Misty Jane Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545

(Tenn. Crim. App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (“Brunelle II”).

Petitioner then filed a petition for writ of error coram nobis, claiming that newly discovered

evidence existed which may have resulted in a different outcome had it been presented at

trial. After a hearing, the coram nobis court denied the petition. Based upon a thorough

review of the law, record, and arguments in this case, we hold that the coram nobis court did

not abuse its discretion in denying the petition. Therefore, we affirm the decision of the

coram nobis court.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the court, in which JOHN E VERETT

W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Brent Hensley, Greeneville, Tennessee, for the appellant, Misty Jane Brunelle.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Dan

Armstrong, District Attorney General; and Cecil C. Mills, Jr., Assistant District Attorney

General, for the appellant, State of Tennessee.

OPINION

Factual and Procedural Background

On February 2, 2006, Petitioner was convicted by a Greene County jury of three

counts of aggravated child abuse in relation to broken bones sustained by her infant daughter

(“the victim”) in 2003. Petitioner received a total effective sentence of twenty-five years’

incarceration. On direct appeal, this Court affirmed the convictions and sentences. Brunelle

I, 2007 WL 2026616, at *18. The Tennessee Supreme Court denied Petitioner’s application

for permission to appeal.

On October 17, 2008, Petitioner filed a pro se petition for post-conviction relief. The

post-conviction court appointed counsel, but no amended petition was filed. Petitioner

claimed that she received ineffective assistance of counsel and that newly discovered

evidence existed in her case, specifically a letter from the University of Washington that a

genetic test could not definitively exclude a diagnosis of osteogenesis imperfecta, otherwise

known as “brittle bone disease.” After a hearing, the post-conviction court denied relief,

finding that counsel had not been ineffective and that no newly discovered evidence existed.

This Court affirmed the post-conviction court’s ruling in part and reversed it in part.

Brunelle II, 2011 WL 2436545, at *1. This Court reversed the trial court’s ruling that the

letter did not constitute newly discovered evidence, but held that such a claim should have

been raised in a petition for writ of error coram nobis. Id. at *10.

On August 15, 2011, Petitioner filed a petition for writ of error coram nobis, claiming

that newly discovered evidence existed which may have resulted in a different judgment had

it been presented at trial. The newly discovered evidence is a letter from the University of

Washington’s School of Medicine which states that several tests were performed on a skin

biopsy of the victim in 2003 to determine whether she had osteogenesis imperfecta (OI).

According to the letter:

Typically in individuals with OI type I[,] the amount of type I procallagen is

reduced by half. The cells from your patient synthesized less than normal but

greater than half of the usual amount of type I procollagen. We are uncertain

if this finding is significant in terms of disease causation or is simply

biological variation among samples.

The letter also stated that the tests were “unable to exclude the diagnosis of OI type I.”

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Petitioner asserted that she was unable to obtain this letter during her criminal trial because

it was part of the victim’s file with the Department of Children’s Services (DCS), which was

sealed during the victim’s adoption proceedings.

The coram nobis court held a hearing on the petition on September 20, 2013. The

only witness to testify at the hearing was Dr. Andrew Townsend, the victim’s primary care

physician for almost ten years. He testified that the victim is currently “a normal, active 10-

year-old child with regular activities, no restrictions.” The victim has not had any broken

bones in the past ten years. Based on his observations and treatment of the victim, Dr.

Townsend opined that she is not affected by osteogensis imperfecta. He described the usual

symptoms of that disease and testified that the victim does not display any of these

symptoms. In addition to recurrent fractures, one such symptom is short stature. Dr.

Townsend testified that the victim is above the 50th percentile in both height and weight.

Dr. Townsend admitted on cross-examination that he has never treated a child who suffered

from osteogenesis imperfecta.

The coram nobis court took the matter under advisement in order to review the

victim’s medical records as a late filed exhibit. The coram nobis court entered an order

denying the writ of error coram nobis on January 23, 2014. The coram nobis court made the

following findings of fact and conclusions of law:

The [c]ourt finds that [Petitioner’s] proposed newly discovered evidence

would not have resulted in a different judgment had it been presented at trial.

The University of Washington Lab Report is not exculpatory evidence for

[Petitioner] because it does not reflect a diagnosis of Osteogenesis Imperfecta

(OI). The Laboratory Report merely states: “we were unable to exclude the

diagnosis of OI type 1.” Further, Dr. Andrew Townsend has been [the

victim’s] doctor for nearly ten (10) years and he does not believe she has

Osteogenesis Imperfecta (OI).

Petitioner appealed the ruling of the coram nobis court, arguing that the court erred

in concluding that the newly discovered evidence would not have resulted in a different

judgment had it been presented at trial.

Analysis

The statute governing coram nobis relief provides, in pertinent part:

Upon a showing by the defendant that the defendant was without fault in

failing to present certain evidence at the proper time, a writ of error coram

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nobis will lie for subsequently or newly discovered evidence relating to

matters which were litigated at the trial if the judge determines that such

evidence may have resulted in a different judgment, had it been presented at

the trial.

T.C.A. § 40-26-105(b). The writ of error coram nobis is “an extraordinary procedural

remedy,” designed to fill “only a slight gap into which few cases fall.” State v. Mixon, 983

S.W.2d 661, 672 (Tenn. 1999) (emphasis in original). The “purpose of this remedy ‘is to

bring to the attention of the [trial] court some fact unknown to the court, which if known

would have resulted in a different judgment.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn.

Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966)).

The decision whether to grant or deny a petition for writ of error coram nobis on its

merits rests within the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141,

144 (Tenn. 2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). This

Court will not disturb the coram nobis court’s ruling absent an abuse of discretion. “A court

abuses its discretion when it applies an incorrect legal standard or its decision is illogical or

unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes

reasoning that results in an injustice to the complaining party.” State v. Wilson, 367 S.W.3d

229, 235 (Tenn. 2012).

A petition for coram nobis relief usually must be filed within one year after the

judgment becomes final. T.C.A. § 27-7-103. For the purposes of coram nobis relief, a

judgment becomes final thirty days after the entry of the judgment in the trial court if no post-

trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion.

Mixon, 983 S.W.2d at 670. Whether a claim is barred by an applicable statute of limitations

is a question of law, which we review de novo. Harris, 301 S.W.3d at 144 (citing Brown v.

Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). The State bears the burden of

raising the statute of limitations as an affirmative defense. Id.; Sands v. State, 903 S.W.2d

297, 299 (Tenn. 1995). Because the State did not raise the statute of limitations in the coram

nobis court, we deem the issue waived.

Additionally, when a petitioner seeks a writ of error coram nobis based on newly

discovered evidence, due process considerations may require tolling the statute of limitations.

Harris, 301 S.W.3d at 145 (citing Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001)). Our

supreme court has held that, “before a state may terminate a claim for failure to comply with

procedural requirements such as a statute of limitations, due process requires that potential

litigants be provided an opportunity for the presentation of claims at a meaningful time and

in a meaningful manner.” Workman, 41 S.W.3d at 102 (quoting Burford v. State, 845

S.W.2d 204, 208 (Tenn. 1992). This Court previously recognized this issue in Petitioner’s

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post-conviction appeal and noted that “due process requires balancing the ‘governmental and

private interests involved’ and that the statute of limitations must be tolled if the private

interest outweighs the government’s interest in preventing stale and groundless claims.”

Brunelle II, 2011 WL 2436545, at *10 n.3 (citing Burford, 845 S.W.2d at 209). We find that

Petitioner’s interest in this case does outweigh any governmental interest, and we will

address Petitioner’s claim on its merits.

A petition for writ of error coram nobis must include: (1) the grounds and the nature

of the newly discovered evidence; (2) why the admissibility of the newly discovered evidence

may have resulted in a different judgment had the evidence been admitted at the previous

trial; (3) that the petitioner was without fault in failing to present the newly discovered

evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.

State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004); Hart, 911 S.W.2d at 374-75. The

evidence must be relevant, admissible, and credible. See Wilson, 367 S.W.3d at 235;

Vasques, 221 S.W.3d at 527. The coram nobis court must be “reasonably well satisfied” with

the veracity of the evidence and determine whether the petitioner was truly “without fault,”

that is whether “the exercise of reasonable diligence would not have led to a timely discovery

of the new information.” Vasques, 221 S.W.3d at 527. The court “must then consider both

the evidence at trial and that offered at the coram nobis proceeding in order to determine

whether the new evidence may have led to a different result.” Id. (emphasis in original). In

other words, there must be a “reasonable basis for concluding that had the evidence been

presented at trial, the result of the proceedings might have been different.” Id. (citing State

v. Roberto Vasques et al, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn.

Crim. App. Oct. 7, 2005)).

In this case, it is clear that Petitioner was without fault in failing to present the

University of Washington letter during her 2006 trial. The letter was part of the victim’s

DCS file, which was sealed by the judge presiding over her adoption. Brunelle II, 2001 WL

2436545, at *3. In our post-conviction review, this Court held that Petitioner’s trial counsel

was not ineffective for failing to obtain the letter and noted that Petitioner “failed to suggest

what more counsel could have done at trial . . . to have gained access to the DCS file.” Id.

at *8. We further noted that Petitioner did not have the letter when she filed her post-

conviction petition or at the evidentiary hearing. Id. at *10. We conclude that Petitioner has

exercised reasonable diligence in this case, which did not lead to a timely discovery of the

evidence in question; therefore, Petitioner is without fault in failing to present the evidence

at the proper time.

Secondly, the letter clearly relates to an issue litigated at trial, specifically whether the

victim’s injuries could potentially be attributed to osteogenesis imperfecta. See Brunelle I,

2007 WL 2026616, at *5-6. Dr. Robert Thomas, a radiologist who had examined x-rays of

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the victim’s injuries, testified for the State at trial that “the victim showed no signs of

osteogenesis imperfecta,” and that “because the victim did not have the bone disease, normal

play would not cause these types of fractures.” Id. at *5. Dr. Thomas admitted on cross-

examination that “it is not possible to be absolutely certain, based on x-rays, that one does

not have brittle bone disease.” Id. at *6. During the subsequent post-conviction hearing,

Petitioner’s trial attorney testified that he investigated whether osteogenesis imperfecta could

form part of the defense strategy. Brunelle II, 2011 WL 2436545, at *3. Through discovery,

he was provided results from a genetic test conducted by Tulane University that indicated

that the victim’s father was a carrier of the gene that causes osteogenesis imperfecta. Id.

Trial counsel cross-examined the victim’s father about a statement he made that someone in

his family had the disease, but the victim’s father stated that he later learned that was not

true. Id. at *7. Trial counsel also consulted with a forensic pathologist, who reviewed the

discovery materials and came to the opinion that the victim did not have osteogenesis

imperfecta. Id. at *3.

Finally, there is no dispute as to the veracity of the evidence. This is not a case of

recanted witness testimony, such as in Mixon, that would require a finding that “the

testimony given by the material witness was false and the new testimony is true.” 983

S.W.2d at 673 n.17. The evidence in this case is a letter reporting the results of tests

conducted by the University of Washington. There is no dispute between the parties as to

the authenticity or accuracy of the test results contained in the letter.

The determinative issue in this case is whether, considering this newly discovered

evidence in conjunction with both the evidence presented at trial and the evidence presented

at the coram nobis proceeding, the result of Petitioner’s trial may have been different.

Petitioner asserts that the coram nobis court applied an incorrect legal standard when it stated

that the University of Washington letter was “not exculpatory evidence for [Petitioner]

because it does not reflect a diagnosis of Osteogenesis Imperfecta” and that it “would not

have resulted in a different judgment had it been presented at trial.” We recognize that the

choice of the words “would have” might reflect a higher standard than the “may have”

standard applied by our supreme court to coram nobis proceedings. See Vasques, 221

S.W.3d at 526 (quoting State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002)).

However, the coram nobis court also found that Petitioner “has not shown even a mere

possibility that her proposed newly discovered evidence may have resulted in a different

judgment,” which is a lower standard than that articulated in Vasques. Id. at 527 (“If based

upon mere ‘possibility,’ coram nobis relief would be available to any defendant who, within

one year of his conviction and sentence, discovers new evidence even if only slightly

favorable to his defense.”). Therefore, we cannot agree that the coram nobis court applied

an incorrect legal standard.

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Based upon our review of the record, we do not believe that the evidence at issue may

have resulted in a different outcome had it been presented at trial. While the letter states that

a diagnosis of osteogenesis imperfecta could not be excluded and that the victim’s type I

procollagen levels were less than normal, the levels were not consistent with someone who

has the disease. Additionally, while the genetic test performed by Tulane University

indicated that the victim and her father shared a genetic abnormality, because her father had

no symptoms of osteogenesis imperfecta, “it is less likely this alteration is disease causing.”

As this Court stated in relation to Petitioner’s claim of ineffective assistance of counsel:

[G]iven the evidence at trial, particularly Dr. Thomas’ testimony; the fact that

neither the Tulane nor the Washington test results proved the victim had OI;

and the fact that the petitioner’s own potential expert would have testified that

the victim did not suffer from OI and was “shredded,” we again conclude the

petitioner has failed to demonstrate any prejudice.

Brunelle II, 2011 WL 2436545, at *8. The coram nobis court also had before it the testimony

of Dr. Townsend, the victim’s primary care physician, that the victim does not display any

of the symptoms of osteogenesis imperfecta and has not had a broken bone since being

removed from the Petitioner’s care. Further, even if the letter confirmed that the victim has

osteogenesis imperfecta, it does not contradict the evidence presented at trial, deemed

sufficient by this Court, that Petitioner caused the victim’s injuries and did not seek treatment

for those injuries for almost two weeks. See Brunelle I, 2007 WL 2026616, at *10. We hold

that the coram nobis court did not abuse its discretion when it denied Petitioner relief.

Conclusion

Upon a thorough review if the record and arguments in this case, we find no error in

the ruling of the coram nobis court. We, therefore, affirm the court’s decision denying relief.

_________________________________

TIMOTHY L. EASTER, JUDGE

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