Natasha Bates v. State of Tennessee ( 2019 )

01/16/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 24, 2018 Session
NATASHA BATES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Bradley County
No. 16-CR-286 Sandra Donaghy, Judge
___________________________________
No. E2017-01613-CCA-R3-PC
___________________________________
The Petitioner, Natasha Bates, appeals the Bradley County Criminal Court’s denial of her
petition for post-conviction relief from her convictions of two counts of first degree
felony murder and two counts of aggravated child neglect and resulting effective sentence
of two consecutive life terms. On appeal, the Petitioner contends that the trial court
should have granted her motions to suppress evidence and that she received the
ineffective assistance of trial counsel. Based upon the oral arguments, the record, and the
parties’ briefs, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.
William J. Brown, Cleveland, Tennessee, for the appellant, Natasha Bates.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Stephen Davis Crump, District Attorney General; and Brooklyn
Townsend, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On July 18, 2012, the Bradley County Grand Jury indicted the Petitioner for two
counts of first degree felony murder, two counts of aggravated child neglect, four counts
of initiating the process to manufacture methamphetamine, and one count of promoting
the manufacture of methamphetamine. On direct appeal of the Petitioner’s convictions,
this court summarized the State’s proof at trial as follows:
This matter resulted from the deaths of the defendant’s sons, R.B.,
age 3, and L.B., age 5, and the discovery of evidence of the manufacture of
methamphetamine at the defendant’s residence.
The State’s first witness was Nicholas Glen Laney, who was
employed by the Bradley County EMS and said that, on June 28, 2012, he
responded to a call to the residence of Thomas Kile, the defendant’s father.
He found one of the victims on the sidewalk in front of the home and the
other inside the front door of the residence, both unresponsive. The
victims’ clothes were soaked apparently with sweat; and R.B. had “warm, .
. . pale . . . [a]nd moist” skin, with blue lips and nail beds. No pulse was
detected for R.B., but L.B. was still breathing and had a pulse.
Dr. Jeffrey Lynn Miller testified that he was an emergency room
physician at the SkyRidge Emergency Room and was the Bradley County
Medical Examiner. He described the condition of R.B. when he arrived at
the hospital:
He was obtunded, he was unresponsive, you know, as
where we are working on the child, you know, we are starting
IV’s and we are doing procedures to the child to try and
determine his . . . condition. There was no response to
anything we did. He was completely unresponsive.
Dr. Miller said that the standard temperature is 98.6 degrees, but
R.B.’s was 109.
Dr. Miller did not believe that R.B.’s playing outside could have
caused a temperature as high as R.B. had. Carol Hayes Mayo testified that
she was on duty at the emergency department at Children’s Hospital at
Erlanger when L.B. was brought in and that his core temperature was 104
degrees.
Travis Smith testified that he was a patrol sergeant with the Bradley
County Sheriff’s Office and, on June 28, 2012, responded to a call
regarding L.B. and R.B. He said that the EMS technicians already were at
the scene and working on the two victims. One was in an ambulance, and
the other was being brought out of the house. Initially, he thought it was a
drowning call, but the defendant said the incident had occurred on Keith
Valley Road. She said she had not called 911 from that location because
she did not have a cell phone and had to go to her father’s house.
-2-
Charles Dewayne Scoggins testified that he was a criminal
investigator for the Bradley County Sheriff’s Office and responded to the
call at 2:44 p.m. to 851 Armstrong Road and immediately went from there
to 879 Keith Valley Road, where the defendant was living. At that
location, he examined the Slip and Slide and explained its condition:
What I noticed initially when I got there the slide
appeared to be relatively dry with the exception of two very
small puddles, all of which had dirt and bugs in it. The
ground around the Slip and Slide was dry, there was no wet
grass anywhere that I could find, and over all in general the
Slip and Slide did not appear to have been used in the recent
past.
He first spoke with the defendant at the SkyRidge Medical Center
Emergency Room, and she said the victims had been outside, playing on
the Slip and Slide and when she returned from the house, they were in the
front yard and unresponsive. Because of the “suspicious circumstance” of
the incident, he asked, and the defendant consented, to having a blood
sample taken from her while still at the emergency room. The defendant
returned with him to her residence, and later they went together to the
Bradley County Sheriff’s Office. She said that she had gone inside her
home, while the victims remained outside in the yard, and when she
returned twenty to twenty-five minutes later, she found them. She said that
she had fixed the victims eggs for breakfast, but Investigator Scoggins
found no evidence that eggs had been cooked that morning. Later, she said
that she had been inside for thirty to forty-five minutes. He asked her the
whereabouts of her cell phone, and she responded she thought it was in her
car, which was then in the possession of the sheriff’s department. He said
that he examined her cell phone and found that it would “ring straight
through to the Bradley County 911 Center.” The defendant did not explain
why her phone had been found in the trunk of her car.
When Investigator Scoggins told the defendant of the autopsy
findings, she responded that the information she had previously given was
accurate, although it was possible that the victims had been under the front
porch instead of in the yard. Later, she said she had found the victims in
her car:
-3-
When we were getting close to being finished she did finally
admit that she in fact had come out and found both children
inside of her car, describing her younger child [R.B.] to be in
the front right passenger seat of the vehicle with that seat laid
completely back, and that her old[er] son [L.B.] was partially
hanging out of the right rear passenger door.
Two search warrants were executed at the defendant’s residence.
The first, on July 3, 2012, was to conduct a temperature study to determine
the maximum temperature in the defendant’s car, where she said she had
found the children. The next search warrant, executed “approximately two
weeks later,” was to search for the manufacture of methamphetamine.
Regarding the temperature experiment, Investigator Scoggins said that the
temperature on June 28, 2012, was 101 degrees, and on July 3, when they
conducted the experiment, it was less than that. The car was parked in the
same location as on June 28, and the purpose of the experiment was to
measure the outside temperature and that at different locations in the car,
using seven or eight thermometers. Every thirty minutes, each thermometer
was read for the temperature shown and was photographed. The conditions
on the day of the test were the same as on June 28, except for the lower
outside temperature. At 1:00 p.m. on the day of the test, the ambient air
temperature inside the car was 129 degrees.
Investigator Scoggins testified that the defendant told him she had a
date with Mike Mauradian the night of June 27 and was with him from 4:30
or 5:30 p.m. until about 10:00 p.m., when she left to go home. However,
after officers asked to search her cell phone, she recalled that later she had
gone to the residence of Preston Woods. Describing the layout of the
interior of the defendant’s vehicle, he said that the back passenger door
“was obstructed based on the front seat being leaned back very far and two
car seats piled up right behind it, you couldn’t get between the seat and the
car seats. It would have been hard to get through there.” He said that, of
the four doors of the vehicle, “the only door that opened from the inside
was the right rear which was blocked by the two car seats.”
Melanie Carlisle testified that she was employed by the Tennessee
Bureau of Investigation (“TBI”) as a special agent forensic scientist in the
field of toxicology and blood alcohol. She said that her testing of the
defendant’s blood showed “amphetamine at less than .05 micrograms per
milliliter, and methamphetamine at less than .05 micrograms per milliliter.”
-4-
She said that, following a methamphetamine “high,” a user would reach a
“crash stage” and become depressed and sleepy.
Monica Datz testified that she was a crime scene investigator and
latent print examiner with the Bradley County Sheriff’s Office. She
examined the defendant’s vehicle and described the condition of the doors:
The front driver door, the exterior handle was broken
but the door can be opened from the exterior by putting my
hand in the hole and searching for and pulling, and I actually
had to have one of our garage employees show me how to do
it. I couldn’t get the door open myself but I was able to pull
on a mechanism inside there and open the door. And the
interior handle on the driver door is broken, but it can be
opened by pulling forward on a little piece that was still there,
and I had to pull forward to open that.
As for the front passenger door, she said that [“]the exterior handle is
missing, there’s a hole in this area. I pulled on a bar in the hole and it
locked and unlocked all the doors, but the door would not open for me.”
She added that the interior handle of the front passenger door was broken
off as well, and she could not open this door from the inside. The exterior
handle of the back driver door worked “properly,” but the interior handle
was missing and she could not open the door from the inside. She said that
the defendant’s cell phone was in the trunk of the vehicle.
Jan Null testified that he was a meteorologist in Saratoga, California,
and since 2001, he had been studying when outside temperatures were
between 72 and 96 degrees. He described the effect of the sun’s heating the
interior of a vehicle:
A car basically acts as a greenhouse. The sun’s energy comes
in what is short wave energy, very high energy. It doesn’t
heat up the air very much but heats up objects inside a
vehicle. It’s not uncommon for seats and dashboards to be
200 degrees. That in turn gives off heat that warms the air
inside of a car, the same sort of radiant heat you would have
from that . . . little glowing heater you have under your desk
for those cold window [sic] mornings. That’s heating up the
car. Well, a car is a closed area and so that heat continues to
rise, and it actually heats up very rapidly. In the first 10
-5-
minutes a car heats up about 19 degrees above whatever the
outside air temperature. After a half an hour it’s 34 degrees
above whatever the outside air temperature is, and in an hour
it’s 40 degrees plus above whatever the outside air
temperature is.
Mr. Null added that, at about one hour, the interior temperature of a
vehicle reached a plateau of about 45 degrees more than the outside
temperature. He had reviewed temperature records, and the June 28
temperature at the Cleveland water treatment plant was 101 degrees. He
explained how the interior temperature of a car would rise as the outside
became warmer:
It would have heated up to, let’s say what that 85 degree
temperature, during that first hour it would have gotten to 125
or so, and then gradually as the day warmed up, as the day
warmed from that 85 to 101 the temperature inside the car,
again that plateau would have been reached and it would have
stayed up at that range.
Mr. Null said leaving the windows of a vehicle partly open made
little difference of the interior vehicle: “It mattered very little as far as
windows being cracked. I have looked at a number of days where they
were cracked and it made a difference of about two or three degrees on the
extreme end of the temperatures.”
Dr. Steven Cogswell testified that he was the deputy chief medical
examiner at the Regional Forensic Center in Knoxville. He described the
effect on the human body as its temperature rises:
Well, at a 109 degrees he will be comatose and
probably die. Above a 108 we start seeing brain damage,
irreversible brain damage. Above 104 we start seeing
reversible kind of changes, the ones that I’ve already gone
over. But when you get to about, roughly a 105 or 106 or so
coma starts setting in because you are simply unable to
maintain conscientiousness [sic]. Your brain is not getting
enough blood. What blood it is getting doesn’t have much
oxygen, you are not moving it very well, and basically your
body begins this process of shutting down. Ultimately that
leads to death. At a 109 degree core temperature though you
-6-
would be expected to be in [a] coma if not death [sic] by that
point.
State. v. Natasha Moses Bates, No. E2014-00725-CCA-R3-CD, 2015 WL 1593657, at
*1-4 (Tenn. Crim. App. at Knoxville, Apr. 7, 2015), perm. app. denied, (Tenn. Aug. 13,
2015).
In addition to the evidence described above, our review of the trial transcript
shows that Patrick Vasterling of the Department of Children’s Services (DCS) testified
that on June 28, 2012, he spoke with the Petitioner at SkyRidge Hospital, that she
consented to a urine test, and that a ten-panel drug screen of her urine was positive for
methamphetamine. Investigator Scoggins testified that during a search of the Petitioner’s
home on July 13, 2012, officers found items used to manufacture methamphetamine in
the Petitioner’s garage and in a dumpster near the garage. Lieutenant John Stone of the
Bradley County Sheriff’s Department’s Narcotics Unit testified that he was familiar with
the “one pot method” for manufacturing methamphetamine and that items found in the
Petitioner’s home and dumpster were consistent with the production and use of
methamphetamine.
Detective Heath Arthur of the Bradley County Sheriff’s Department testified that
he had worked on at least 200 cases involving methamphetamine laboratories, that he was
familiar with the “one pot method” for cooking methamphetamine, and that he helped
execute the search warrant for the Petitioner’s home on July 13. During the search,
officers found plastic “shaker” bottles. Detective Arthur said that although the fluid in a
shaker bottle could “eat through” the bottle in two to three weeks, he did not see any
signs of bottle deterioration in this case. On cross-examination, Detective Arthur testified
that the rate of deterioration depended on the consistency of the contents in the bottle and
that “I’m [no] expert on it, I’m going by what was stated to me from a meth cook that I
recovered a meth lab from.”
James Michael Derry of the Tennessee Meth and Pharmaceutical Task Force
testified that he was certified to operate an ion scan machine and that the machine could
detect methamphetamine residue on surfaces. He testified as an expert in the operation of
the ion scanner that he “tested [swabs] right on the spot as they were collected” in the
Petitioner’s home. The ion scanner detected “a pretty substantial hit” of
methamphetamine on a swab collected from a piece of aluminum foil in the Petitioner’s
garage.
The Petitioner’s mother, aunt, grandmother, and father testified on her behalf. Id.
at *4-5. The Petitioner testified that on the day of the victims’ deaths, they were playing
outside while she was cleaning inside her home. She noticed she had not heard them
-7-
playing for a while, went outside to check on them, and found them lying in the yard.
See id. at *5. The Petitioner said she kept a marijuana pipe and a methamphetamine pipe
in the garage but denied knowledge of materials for making methamphetamine or
providing a place to “‘cook’” methamphetamine. Id. On cross-examination, the
Petitioner maintained that she found the victims “[u]p toward the front yard past the Slip
and Slide.” She “panicked,” put the victims in her car, and drove them to her father’s
house.
On August, 29, 2013, a Bradley County Criminal Court Jury convicted the
Petitioner as charged of two counts of first degree felony murder and two counts of
aggravated child neglect, a Class A felony. The jury convicted the Petitioner of four
counts of facilitation to initiate the process to manufacture methamphetamine, a Class C
felony, as a lesser-included offense of initiating the process to manufacture
methamphetamine. The jury acquitted the Petitioner of the one count of promoting the
manufacture of methamphetamine.
After a sentencing hearing, the trial court sentenced the Petitioner to consecutive
life sentences for the felony murder convictions. The court sentenced her to twenty years
for each conviction of aggravated child neglect and ordered that she serve the sentences
consecutively to each other but concurrently with the life sentences. The court sentenced
her to three years for each facilitation conviction and ordered that she serve the three-year
sentences concurrently with all counts.
On appeal of her convictions to this court, the Petitioner claimed that the evidence
was insufficient to support the convictions, that the trial court erred by not severing the
charges of initiating the process to manufacture methamphetamine from the remaining
charges, and that the trial court erred by ordering consecutive sentencing. Id. at *1. This
court found that the evidence was sufficient to support the convictions but that the trial
court erred by not severing the drug offenses from the murder and aggravated child
neglect offenses. Id. This court reversed the four convictions of facilitation to initiate the
process to manufacture methamphetamine and remanded the case to the trial court for a
new trial as to those counts. Id. This court affirmed the convictions of felony murder
and aggravated child neglect and the sentences for those convictions, including
consecutive sentencing for the murder convictions. Id. On remand, the State chose not to
retry the Petitioner for the drug offenses and dismissed the charges.
After our supreme court denied the Petitioner’s application for permission to
appeal, she filed a timely pro se petition for post-conviction relief, alleging, in pertinent
part, that she received the ineffective assistance of trial counsel. The post-conviction
court appointed counsel for the Petitioner, and post-conviction counsel filed an amended
petition. Relevant to this appeal, post-conviction counsel alleged that (1) the July 13
-8-
search of the Petitioner’s home was illegal because the affidavit used to obtain the search
warrant did not establish probable cause; (2) the temperature experiments conducted on
the Petitioner’s car exceeded the scope of the July 3 search warrant for the car and,
therefore, violated the Petitioner’s Fourth Amendment rights; and (3) she received the
ineffective assistance of trial counsel. Regarding the latter claim, the Petitioner alleged
that trial counsel was ineffective because he should have filed motions to suppress
evidence seized pursuant to the illegal searches of her home and car; failed to pursue
pretrial motions in limine related to evidence obtained from the ion scanner and her urine
test; failed to object to the testimony of Investigator Scoggins, Agent Carlisle, Lieutenant
Stone, Detective Arthur, James Derry, and Patrick Vasterling; and questioned her in such
a manner on direct examination as to suggest to the jury that he did not think she was a
credible witness.
Relevant to this appeal, attorney Robin Flores testified at the post-conviction
evidentiary hearing that he had been practicing law since 2000 and that he was licensed
in Tennessee and Georgia. His law practice focused on civil rights litigation, criminal
defense, and family law, and he estimated that he had worked on hundreds of criminal
cases. He said that he had tried more than fifteen criminal cases, including five murder
cases, but that he had represented less than six petitioners in post-conviction cases.
Over the State’s objection, the post-conviction court allowed Flores to testify as an
expert in criminal defense that he reviewed the Petitioner’s trial record and that the
State’s theory of the case was that “we had a meth addled mother [who] was more
interested in her drug activity than paying attention to the children.” Flores said that trial
counsel filed a pretrial motion in limine to suppress the results of the Petitioner’s urine
test, which was positive for both methamphetamine and marijuana, but that trial counsel
abandoned the motion. Flores stated that trial counsel should have challenged the
reliability of the urine test because it was administered by a DCS employee “who did just
a test strip that could be read any number of ways.” Moreover, the Tennessee Bureau of
Investigation already had conducted a blood test on the Petitioner. Therefore, the urine
test “just added” to the State’s theory of the case.
Flores testified that trial counsel also filed a pretrial Daubert motion regarding the
evidence obtained from the ion scanner but failed to pursue the motion. He said that the
results of the ion scan supported the State’s theory that methamphetamine was
manufactured in the Petitioner’s home and that trial counsel had no reason to abandon the
motion. Trial counsel filed a similar pretrial motion regarding the temperature study on
the Petitioner’s car. Flores said trial counsel never argued the motion, which “would
have hit the heart of the State’s case, as far as the mechanism of death.”
-9-
Flores testified that he reviewed the search warrants for the Petitioner’s car and
home. He described the Petitioner’s car as “the weapon” and “the instrumentality of
death.” He noted that this court’s direct appeal opinion referred to the temperature study
as an “experiment.” Flores said the search warrant for the car did not authorize an
experiment on the vehicle or the movement of the vehicle back to the Petitioner’s home
for the experiment. Therefore, trial counsel should have filed a motion to suppress the
evidence obtained from the experiment. Regarding the search warrant for the Petitioner’s
home, the affidavit in support of the warrant contained information from informants who
claimed to have seen the Petitioner using drugs in her residence. However, the
information was “stale” because the incidents reported by the informants occurred almost
two weeks before the affidavit was presented to obtain the warrant. Moreover, because
the informants used the drugs with the Petitioner, they were part of the “criminal milieu,”
and the affidavit should have satisfied the Jacumin and Aguilar-Spinelli standards for
establishing their credibility and reliability.
Flores testified that he reviewed James Derry’s trial testimony about the ion
scanner and that trial counsel made “little, if any” challenge to Derry’s qualifications to
testify about the results obtained from the scanner. Flores said that a challenge to Derry’s
qualifications would have been appropriate because Derry’s testimony “put to a Jury that
there was this ongoing methamphetamine production going [on in] the residence.” Trial
counsel should have objected to Derry’s testimony about the ion scan and pursued the
motion in limine he filed regarding the evidence obtained from the scan.
Flores testified that trial counsel should have challenged Patrick Vasterling’s
qualifications to administer the Petitioner’s urine test and Investigator Scoggins’
qualifications to conduct the temperature experiment on the Petitioner’s car and report the
experiment’s results. Furthermore, although Investigator Scoggins testified that he did
not work in narcotics, he was allowed to testify about the importance of Coleman fuel
and Drano in the process of manufacturing methamphetamine. Flores said Agent Carlisle
also was allowed to testify “in fields of expertise” in which she was not qualified.
Specifically, Agent Carlisle testified that a person “crashing” after being “high” on
methamphetamine would be sleepy. Flores said Agent Carlisle’s testimony was
important to the State’s theory that the Petitioner was “a meth mom.”
Flores stated that Lieutenant Stone testified “very broadly in generalities about
things that he didn’t observe at the scene.” Lieutenant Stone also gave a “broad” opinion
as to how methamphetamine laboratories were created and how people participated in the
laboratories. Lieutenant Stone’s testimony was prejudicial to the Petitioner because
“again, it piled on the State’s case that this is a meth mom.” Moreover, at sentencing, the
trial court used the repetitious trial testimony about a methamphetamine laboratory being
in the home to find that the victims were living in “horrible conditions.” Detective
- 10 -
Arthur testified at trial that he obtained his information from a “meth cook.” However,
trial counsel did not challenge Detective Arthur’s hearsay testimony. Flores said
Detective Arthur’s trial testimony was prejudicial because it was “a piling on . . . about
meth labs in general.”
Finally, Flores testified that he reviewed trial counsel’s direct examination of the
Petitioner and that “it looks almost as if he was challenging his own witness.” Flores said
trial counsel appeared to be the Petitioner’s adversary rather than her advocate, which
“signal[ed]” to the jury that it should not believe the Petitioner. Flores said that in his
opinion, the Petitioner received the ineffective assistance of trial counsel.
On cross-examination, Flores testified that this was his first time testifying as a
criminal defense expert in a post-conviction case and that he was not being paid for his
testimony. He acknowledged that he represented a defendant named Jason Rogers and
that the trial court later found him to have rendered the ineffective assistance of counsel
in Rogers’s case.
Flores testified that he spent about six hours reviewing the Petitioner’s trial record.
He did not interview any witnesses who testified at trial, did not review any discovery
filed in the case, and did not interview trial counsel. Regarding the search warrant for the
Petitioner’s home, Flores acknowledged that Jacumin was later overturned and that the
new standard was “bad” for defendants. He said, though, that Jacumin was in effect
when the affidavit to obtain the search warrant for the Petitioner’s home was submitted.
He acknowledged that trial counsel never challenged the legality of the search warrant in
this case and that, if addressed by the post-conviction court, the post-conviction court
would have to look at the legality of the warrant under the new standard.
Regarding the temperature experiment conducted on the Petitioner’s car, Flores
testified that “[t]here was a reference to [the experiment] toward the end of the affidavit”
in support of the search warrant but that the search warrant itself did not authorize any
experiment or test on the vehicle. The search warrant also did not authorize any
movement of the vehicle.
Flores acknowledged that defense counsel cross-examined the State’s witnesses
and filed a motion for a bill of particulars, which was denied by the trial court. Trial
counsel also filed a motion to sever the offenses and raised the issue on appeal, and this
court agreed with trial counsel.
On redirect examination, Flores testified that even though trial counsel cross-
examined the State’s witnesses, suppression of the evidence would have been the best
trial strategy so that the jury did not hear about the evidence. Flores said that in his
- 11 -
opinion, trial counsel’s failure to pursue the motion in limine regarding the ion scanner
was not a legitimate trial strategy. He noted that trial counsel alleged in the Petitioner’s
motion for new trial that the trial court erred by allowing the State to introduce the ion
scanner results into evidence. He also noted that during the hearing on the motion for
new trial, the trial court said it waited for trial counsel to object to the ion scan evidence
during the trial but that counsel never did so. Flores stated, “That tells me that the trial
Court would have granted that [motion].”
The Petitioner testified that trial counsel never talked with her about filing motions
to suppress the searches of her home or car and never talked with her about the motions
in limine he filed regarding her urine test and the ion scanner. The Petitioner and trial
counsel talked “a little bit” about her trial testimony. However, trial counsel never told
her that he was going to use her direct examination testimony to suggest she was lying.
Post-conviction counsel asked if the Petitioner was comfortable with trial counsel’s
questions to her during direct examination, and she said no.
On cross-examination, the Petitioner acknowledged that trial counsel talked with
her about how difficult the State’s cross-examination was going to be. She also
acknowledged that trial counsel talked with her about preparing for the State’s cross-
examination and that trial counsel told her the jury “needed to hear everything from her.”
The Petitioner said, though, that she did not know trial counsel was going to “jump all
over [her]” on direct examination. The Petitioner acknowledged that she and trial
counsel discussed the ion scanner and that he gave her discovery materials.
Trial counsel testified that he became licensed to practice law in 1989 and that he
had been working for the public defender’s office since that time. He said he had served
as lead counsel in ten to twelve murder cases and had assisted other attorneys in an
additional twelve murder cases. The public defender’s office was appointed to represent
the Petitioner, and trial counsel served as lead counsel. A second attorney served as
assistant counsel and met with the Petitioner in jail “almost on a weekly basis.” Trial
counsel also met with her but not as often as assistant counsel.
Trial counsel testified that he considered the Petitioner’s case to be a “major” case.
When trial counsel began representing the Petitioner, the State’s investigation was
ongoing. The State provided open file discovery to trial counsel, and trial counsel
reviewed discovery as the investigation continued. He said that he filed a motion for a
bill of particulars and a motion to sever the drug offenses and that the motion to sever “in
some ways acted as a suppression motion.” During the hearing on the motion to sever,
trial counsel raised the issue of stale information and access others had to the dumpster,
which was part of his strategy. However, the trial court denied the motion.
- 12 -
Trial counsel testified that as part of his investigation, he went to the Petitioner’s
home. He also met with her mother, grandmother, and aunt to find out what they knew
about the case. Trial counsel said that his trial strategy was to mitigate the State’s
evidence as much as he could. For example, trial counsel presented proof that the
Petitioner’s mother owned the Petitioner’s mobile home and garage. The Petitioner had
lived there only a short time before the victims died, and other people had access to the
property.
Trial counsel testified that he reviewed the search warrants for the Petitioner’s car
and home. Regarding the search warrant for the car, which was executed on July 3, 2012,
trial counsel did not think there was a basis for a motion to suppress based upon a lack of
probable cause. Trial counsel also did not consider the temperature study inside the car
to be an “experiment” or scientific evidence. During the study, police officers
photographed the car and recorded the temperature by the hour. Trial counsel said he did
not think that the sheriff’s department needed a separate search warrant simply to monitor
the temperature inside the car or that monitoring the temperature violated the Fourth
Amendment. Regarding the search warrant for the home, which was executed on July
13, 2012, trial counsel said that the affidavit and search warrant were “kind of a typical
boiler plate search warrant and affidavit that you see” and that he did not think a motion
to suppress would have been successful. The search warrant for the home was executed
about ten days after the victims died and was obtained based on information provided by
“some associates” of the Petitioner. The associates corroborated each other, and trial
counsel did not think their information was stale.
Trial counsel testified that assistant counsel talked with James Derry before trial
about Derry’s qualifications to use the ion scanner. At trial, trial counsel did not object to
Derry’s testifying as an expert. Trial counsel had “very limited knowledge” about ion
scanners but knew data collected from them “wasn’t exactly cutting edge” and had been
admitted into evidence in federal cases. He said he thought the ion scan met the Daubert
test and that he did not object to Derry’s testimony about the scan results. Even though
one of Derry’s samples was positive for methamphetamine, trial counsel knew from his
research that methamphetamine particles “remain months, even years later.” Therefore,
trial counsel thought he could show during Derry’s cross-examination that the
methamphetamine residue could have been in the Petitioner’s home for months or years
before she lived there. Regardless, even if the jury had not heard Derry testify about the
ion scan results, the jury would have heard that police officers found evidence of a
methamphetamine laboratory in garbage in her home and dumpster. Methamphetamine
also was in the Petitioner’s blood, and trial counsel “didn’t see any way around the
admissibility of that blood test result.” Accordingly, “meth was gonna be a part of the
case.” That said, trial counsel “tried to remove [the Petitioner] as far as [he] could from
any active manufacture of methamphetamine” and show through his cross-examination of
- 13 -
the State’s witnesses that the Petitioner used methamphetamine but was not actively
involved in manufacturing methamphetamine.
Trial counsel testified that the Petitioner consented to her urine test, which was
positive for methamphetamine and marijuana. The Petitioner also consented to a blood
test, which showed methamphetamine in her system. Trial counsel filed a motion in
limine to exclude the urine test, but he did not know of a way to keep the blood test from
the jury. Therefore, he entered into an agreement with the State in which the State agreed
not to reveal to the jury that the Petitioner’s urine was positive for both
methamphetamine and marijuana. At trial, Patrick Vasterling testified for the State that
the Petitioner’s urine was positive for methamphetamine. However, he did not testify
that her urine was positive for marijuana.
Trial counsel acknowledged that he did not object to Agent Carlisle’s
qualifications or her direct testimony that crashing after a high on methamphetamine
would make a person sleepy. During her cross-examination, though, trial counsel pointed
out to the jury that the amount of methamphetamine in the Petitioner’s system was low.
Trial counsel also cross-examined Agent Carlisle “quite a bit” to show that the Petitioner
was not using methamphetamine at the time of the victims’ deaths. Similarly, trial
counsel cross-examined Investigator Scoggins about the Petitioner’s demeanor at the
hospital, and Investigator Scoggins testified that he did not think the Petitioner was under
the influence of methamphetamine. Trial counsel said that although Investigator
Scoggins was not an expert on the manufacture of methamphetamine, other officers who
testified for the State could have qualified as experts. Therefore, even if trial counsel had
objected to Investigator Scoggins’s testimony about manufacturing methamphetamine,
the State had “other ammunition.” Regarding Detective Arthur, trial counsel did not try
to exclude his testimony about finding items used to manufacture methamphetamine in
the Petitioner’s home. Nevertheless, trial counsel thought he could do a “good job” of
mitigating Detective Arthur’s testimony by showing that the State could not link the
manufacture of methamphetamine to the Petitioner at the time of the victims’ deaths.
Trial counsel argued to the jury that the items did not belong to the Petitioner and could
have been in the home for a month before the victims died.
Trial counsel testified that the Petitioner was going to claim at trial that she found
the victims in the yard. However, the evidence did not support her claim. Trial counsel
said that he and the Petitioner had “numerous conversations about her version of the
events,” that he was concerned her version could not be corroborated by the evidence,
and that he “thought there was gonna be serious consequences” if the jury thought she
was lying. Regarding the tone and adversarial nature of his direct examination of the
Petitioner, he stated,
- 14 -
[M]aybe I was too hard on her. I thought I needed to be able to get
her to show some real emotion, and I thought, maybe she would have a
different version in front of the Jury as to what happened. I know what she
told me. I know what I anticipated her testimony to be. But I was
concerned [that] the testimony was gonna be I found them in the yard.
On cross-examination, trial counsel testified that he filed a motion to sever the
drug offenses and “won” that issue on appeal. Trial counsel argued to this court that the
severance error entitled the Petitioner to a new trial on all of the charges, not just the drug
charges, but this court ordered a new trial only on the drug charges. Trial counsel
reviewed the search warrants for the Petitioner’s car and home and determined that
motions to suppress would not be successful. Therefore, his strategy was to focus on the
short amount of time the Petitioner was in the home and access to the home by other
people. Regarding the affidavit for the search of the home, the information given to the
police by the Petitioner’s associates predated the victims’ deaths by just a couple of days.
Accordingly, the information was not stale. In addition, the associates were not “criminal
informants.” Trial counsel acknowledged that the police applied for the search warrant
fourteen days after the victims died. Trial counsel maintained that he thought he could
mitigate the evidence found during the search of the home because the Petitioner had
lived there just a couple of weeks.
Trial counsel noted that the affidavit in support of the search warrant for the home
requested to use an ion scanner during the search. Although trial counsel filed a motion
in limine to exclude the ion scan results, he found cases in which ion scan results had
been admitted into evidence. During a pretrial hearing, the trial court stated that it would
determine the admissibility of the results during the trial. Trial counsel never raised the
issue at trial but raised the issue in his motion for new trial. At the hearing on the motion
for new trial, the trial court considered the issue waived. Trial counsel explained, “[M]y
thinking, right or wrong, my tactic was to mitigate her involvement with [the
manufacture of methamphetamine] because she hadn’t lived there for a long period of
time.” He acknowledged, though, that if the trial court had granted his motion in limine,
it would have affected the State’s ability to prove the manufacture of methamphetamine
in the residence.
Regarding the search warrant for the Petitioner’s car, trial counsel testified that he
was not aware of United States v. Jones, 565 U.S. 400 (2012). He said he thought
probable cause existed to issue the search warrant because the State had evidence the
victims died of heat exhaustion in the car. Therefore, the car was the instrumentality of
the crime, and the police could return the car to the crime scene to conduct the
temperature study. Trial counsel stated that although the movement of the car and the
temperature study were not mentioned in the search warrant, he did not think the police
- 15 -
were required to obtain a warrant “to simply do [a] heat study on the inside of the vehicle,
that they already, lawfully had in their possession.” He then stated, “There was no
search.” Regardless, even if a motion to suppress the temperature study had been
successful, nothing precluded the State from obtaining a new search warrant and
conducting the temperature study again. Trial counsel acknowledged that Jan Null
testified as an expert for the State based on the temperature study but said that “we all
know [without Null’s testimony] cars heat up during the day if they’re left out in the
sun.” He acknowledged that the temperature study helped the State’s case.
Trial counsel acknowledged that during Investigator Scoggins’ trial testimony,
Investigator Scoggins told the State that he was not qualified to testify about the
manufacture of methamphetamine. Nevertheless, the State continued to examine him
about the subject. Trial counsel said he did not object to Investigator Scoggins’s
continued testimony about the manufacture of methamphetamine because his trial
strategy was to show that the State could not prove the Petitioner was involved in
manufacturing the drug when the victims died. In any event, even if trial counsel had
successfully excluded Investigator Scoggins’s testimony, the State had other witnesses
who could testify about methamphetamine production. Trial counsel also did not object
to Detective Arthur’s testimony from a “meth cook.” Trial counsel reiterated that his trial
strategy was to mitigate the State’s proof and said that he not object to Detective Arthur’s
testimony because he thought the evidence “was coming in anyway.” Trial counsel
acknowledged that he allowed Agent Carlisle to testify about the effects of
methamphetamine on a person’s body and that he should have objected to her testimony.
Regarding trial counsel’s direct examination of the Petitioner, trial counsel
explained as follows:
I don’t remember ever accusing her of being a liar. I’m asking her
difficult questions about inconsistencies in her statements, and what I
believe to be inconsistencies with the crime scene. . . . The same questions
a Jury was gonna have. I absolutely thought the Jury was gonna have some
serious questions about the condition of that house, that that could affect
their decision on this, the bad conditions of the house. I couldn’t -- I
couldn’t -- you’ve talked about me ignoring evidence and not filing
motions. I wasn’t gonna ignore that. She had to explain it. I confronted
her with it. I thought she answered it fine.
In the beginning of the direct I thought she showed some good
emotion, real emotion, a mother who had lost two children. That was my
tactic, to get heartfelt emotion from her. I thought that was important in
- 16 -
this case. These were two small children. She was the mother. They died
in her care.
In a written order, the post-conviction court denied the petition for post-conviction
relief. The court found Robin Flores and trial counsel to be credible witnesses. The trial
court also found the Petitioner credible but stated that “her ability to remember was poor
and her testimony lacked specificity.” Turning to the issues raised, the post-conviction
court found that trial counsel “probably” should have filed a motion to suppress the
methamphetamine and ion scanner evidence obtained pursuant to the July 13 search
warrant for the Petitioner’s home. The trial court noted that while trial counsel’s strategy
was to “distance” the Petitioner from the State’s evidence, the better strategy would have
been for the jury not to have heard about the methamphetamine and ion scanner evidence
at all. The court found, though, that even if trial counsel had filed a motion to suppress
and the trial court had granted the motion, the jury still would have heard about other
“meth-related” evidence, such as the Petitioner’s blood test and text messages in her
cellular telephone that linked her to drug use. Thus, the court found that the Petitioner
failed to demonstrate prejudice.
The post-conviction court also found that trial counsel “probably” should have
filed a motion to suppress the temperature study conducted on the Petitioner’s car
because the study was outside the scope of the July 3 search warrant. That said, the post-
conviction court found that the temperature study was “an observation over time,” not a
“search,” and, therefore, that a search warrant for the temperature study was not required.
The court found that two cases relied on by the Petitioner, United States v. Jones, 565
U.S. 400 (2012), and State v. Meeks, 876 S.W. 121 (Tenn. Crim. App. 1993), were
“readily distinguishable from the observations or measurements made on an item of
evidence in police custody.”
Finally, the post-conviction court addressed the Petitioner’s claim that trial
counsel was ineffective during his direct examination of her at trial. The court found that
trial counsel’s “‘accusatorial’” style of questioning the Petitioner “[fell] under the
umbrella of ‘trial tactics’ made in the heat of battle.” Thus, the post-conviction court
denied the Petition for post-conviction relief.
II. Analysis
On appeal, the Petitioner contends that the post-conviction court should have
granted her post-conviction relief on her “stand alone” claims that the searches of her car
and home violated her Fourth Amendment rights. Regarding the search of her car, she
asserts that the movement of the car from the sheriff’s department back to her residence
and the subsequent temperature study exceeded the scope of the search warrant.
- 17 -
Regarding the search of her home, she argues that the affidavit in support of the search
warrant did not establish that items related to the manufacture of methamphetamine
would be present in her home on the date of the search. The Petitioner also contends that
she received the ineffective assistance of counsel. Specifically, she contends that trial
counsel was ineffective because he failed to file motions to suppress the evidence found
during the searches of her home and car; failed to pursue motions in limine regarding the
ion scan and urine test; failed to object to the testimony of Investigator Scoggins,
Detective Arthur, Agent Carlisle, James Derry, and Patrick Vasterling; and questioned
her so harshly that he suggested to the jury she was lying. The State argues that the post-
conviction court properly denied the petition for post-conviction relief. We agree with
the State.
Initially, we note that the State argues for the first time in a footnote of its brief
that the Petitioner’s stand-alone claims regarding the searches of her car and home are not
properly before this court because she could have raised them at trial. See Tenn. Code
Ann. § 40-30-106(g). The Petitioner responds that the State has waived this defense
because the State failed to raise it in the State’s written response to the petition for post-
conviction relief or at the evidentiary hearing. See State v. Walsh, 166 S.W.3d 641, 646
(Tenn. 2005) (concluding that because State did not assert the defense of waiver at the
post-conviction hearing, “the State’s waiver argument has itself been waived”).
However, “when suppression of evidence seized pursuant to a search warrant is
advocated, the burden is upon the accused to prove by a preponderance of the evidence . .
. the existence of a constitutional or statutory defect in the search warrant or the search
conducted pursuant to the warrant. State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998).
The Petitioner did not present any testimony at the evidentiary hearing regarding the
affidavits filed in support of the search warrants or the legality of the warrants. Although
Robin Flores testified about the affidavits and search warrants, he did so in the context of
ineffective assistance of counsel. Moreover, the post-conviction court did not address the
search warrants as independent claims for relief but instead considered them solely as
grounds for ineffective assistance of counsel. The Petitioner does not assert that we
should remand the case to the post-conviction court and direct that court to rule on his
stand-alone claims regarding the search warrants. Thus, like the post-conviction court,
we will address those claims only within the context of ineffective assistance of counsel.
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
- 18 -
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Further,
[b]ecause a petitioner must establish both prongs of the test, a
failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in
any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
A. Car Search Warrant
The Petitioner claims that trial counsel was ineffective for failing to file a motion
to suppress the temperature study conducted on her car because the movement of the car
from the sheriff’s department to her residence and the temperature study exceeded the
scope of the warrant. The State argues that counsel was not ineffective for failing to file
a motion to suppress. We agree with the State.
- 19 -
On July 2, 2012, Detective Kevin White of the Bradley County Sheriff’s
Department submitted an affidavit in support of a search warrant for the Petitioner’s car.
The affidavit stated that the car was being stored at the sheriff’s department and that
probable cause existed to believe the car “will contain evidence, contraband, fruits,
instrumentalities or other items criminally possessed or tends to demonstrate that said
person(s) participated in the commission of violations of [Tennessee Code Annotated
section] 39-15-402 Aggravated Child Abuse and Child Neglect or Endangerment.” The
affidavit then listed eight paragraphs in support of probable cause. The eighth paragraph
addressed the proposed temperature study and stated as follows:
A consent search was conducted on the vehicle to be searched on 6-29-12.
At the time of this search several facts were not known. Items that would
show the whereabouts of [the Petitioner] such as paperwork, receipts and
other documents were not examined because of the information provided at
that time. Additionally, temperatures inside of the automobile were not
recorded due to the information at the time being provided by the mother
[the Petitioner]. Now that it is known the children likely died in a confined
space, this automobile needs to be examined for conditions and
temperatures as well as any item that would show the whereabouts of [the
Petitioner]. For the purposes of the examination of the conditions inside
the vehicle during heated conditions, the vehicle will need to be transported
back to the residence where the incident is alleged to have occurred to
create similar conditions to document the temperature inside of the vehicle.
A search warrant was issued on July 2, 2012, and authorized law enforcement “to
make a forthwith search of the 1995 Green Toyota Corolla bearing Tennessee registration
A7267Y owned by [the Petitioner] and all of its contents including any and all electronic
devices, currently being stored at the Bradley County Sheriff’s Office[.]” Based on the
warrant, the sheriff’s department transported the car back to the Petitioner’s residence
and conducted the temperature study on July 3. At the post-conviction evidentiary
hearing, trial counsel testified that he did not file a motion to suppress the results of the
temperature study because the car was the instrumentality of the crime; therefore, the
police did not need a search warrant to conduct the study. Trial counsel also stated that
he did not think the temperature study constituted a “search.” The post-conviction court
found that while trial counsel “probably” should have filed a motion to suppress, the
temperature study was not a search. Thus, the police did not need a warrant for the
temperature study.
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, absent a few narrowly defined exceptions, a search
- 20 -
must be conducted according to a valid search warrant to be reasonable. See State v.
Brown, 294 S.W.3d 553, 561 (Tenn. 2009).
In support of her claim that the movement of the car and subsequent temperature
study constituted a search that exceeded the scope of the search warrant, the Petitioner
relies, as she did at the post-conviction evidentiary hearing, on United States v. Jones. In
that case, law enforcement installed a GPS tracking device on a vehicle and monitored
the vehicle’s movements for twenty-eight days. Jones, 565 U.S. at 949. The government
later used evidence obtained from the GPS device to connect the defendant to a cocaine
“stash” house. Id. The United States Supreme Court held that the installation and
monitoring of the device constituted a “search” under the Fourth Amendment and,
therefore, required a warrant. As the court explained,
It is important to be clear about what occurred in this case: The
Government physically occupied private property for the purpose of
obtaining information. We have no doubt that such a physical intrusion
would have been considered a “search” within the meaning of the Fourth
Amendment when it was adopted.
Id. However, we agree with the post-conviction court that Jones is quite distinguishable
from the present case in that the “information” obtained in Jones was the defendant’s
movements during an ongoing crime.
In this case, R.B. died on June 28, and L.B. died on the afternoon of June 29.
Investigator Scoggins testified that on the evening of June 29, the Petitioner told him that
she found the victims in her car. According to Investigator Scoggins’ July 2 affidavit in
support of the search warrant, the car was searched pursuant to consent on June 29.
Crime Scene Investigator Monica Datz testified at trial that she “started examining the
vehicle for evidence” on the evening of June 29 and that her examination included testing
the car’s exterior and interior door handles. According to her report, the car was later
transported to the sheriff’s department’s impound lot. Trial counsel testified that the
police had probable cause to believe the victims died of hyperthermia in the car. We note
that Robin Flores, the Petitioner’s own expert, repeatedly referred to the car as the
“weapon.” The post-conviction court found that the car was in the sheriff’s department’s
custody at the time of the heat study, and the evidence does not preponderate against the
finding of the post-conviction court.
Law enforcement can seize a vehicle that was the instrumentality of the crime.
See State v. Donald Curtis Reid, No. M1999-00058-CCA-R3-CD, 2000 WL 502678, at
*7 (Tenn. Crim. App. at Nashville, Apr. 28, 2000); State v. Arthur B. Harbin, Jr., No.
C.C.A. No. 60, 1990 WL 126729, at *1 (Tenn. Crim. App. at Jackson, Sept. 5, 1990).
- 21 -
Moreover, a subsequent inspection of the vehicle is not an unlawful search. Arthur B.
Harbin, Jr., C.C.A. No. 60, 1990 WL 126729, at *1; see People v. Teale, 450 P.2d 564,
570 (Cal. 1969) (stating that “it is plainly in the realm of police investigation to subject
objects that have been properly seized[, including automobiles,] to scientific testing and
examination”); People v. William Earl Sorrell, 363 N.W.2d 18, 19 (Mich. Ct. App. 1984)
(officers, who lawfully seized automobile as an instrumentality of the crime, could
conduct tests on the vehicle); State v. Lewis, 258 N.E.2d 445, 449 (Ohio 1970)
(providing that “[s]ince the seized car was an instrumentality used in the crime, the
authorities had as much right to examine it as they would to examine a weapon claimed
to have been used in the commission of a crime”). In fact, police officers “routinely and
properly conduct testing of items taken into evidence.” State v. Shannon A. Holladay,
No. E2004-02858-CCA-R3-CD, 2006 WL 304685, at *7 (Tenn. Crim. App. at Knoxville,
Feb. 8, 2006) (J. Wade, concurring). Thus, we conclude that the Petitioner has failed to
show that trial counsel was deficient for failing to file a motion to suppress the
temperature study.
B. Home Search Warrant
The Petitioner claims that trial counsel was ineffective by failing to file a motion
to suppress the methamphetamine and ion scan evidence obtained from the July 13 search
of her home. She contends that the affidavit submitted in support of the search warrant
contained stale information from informants and failed to establish probable cause that
evidence of manufacturing methamphetamine would be found in the residence at the time
of the search. The State argues that the information was not stale and that the affidavit
established probable cause for the search warrant; therefore, a motion to suppress the
evidence would have been unsuccessful. We conclude that trial counsel was deficient but
that the Petitioner has failed to demonstrate prejudice.
On July 13, 2012, Investigator Scoggins submitted an affidavit in support of a
search warrant for the Petitioner’s home. The affidavit stated that probable cause existed
to believe the house contained evidence of the Petitioner’s drug use and manufacturing
methamphetamine and listed eleven paragraphs as bases for probable cause. The
Petitioner takes issue with the following paragraphs:
h) On Monday July 9, 2012 Mr. Preston Woods was interviewed due to
information received that he was with the mother Tasha Moses Bates the
night before the children died. Mr. Woods told your affiant that he
observed Tasha Moses Bates “Geeking” and using marijuana that night at
her home. Mr. Woods also states that both children were present while he
was there. He stated that Tasha Moses then drove him home in her green
Toyota Corolla.
- 22 -
i) On Tuesday July 10, 2012, Terry and Rachel Murphy told [your] affiant
that they were at the home of Tasha Moses two nights before the children
died and that Marijuana was being smoked by all parties present including
Tasha Bates. They also stated that at least one of Ms. Bates children was
present.
j) On Wednesday July, 11, 2012, Mr. Robert Keith Taylor told your affiant
that on the day of the children’s funeral he was party to a conversation
between Scott Rouse and Robert Edward Hamilton. During this
conversation Mr. Hamilton asked Mr. Rouse if had gotten all of the garbage
cleaned up before the police arrived. Mr. Taylor stated that they were
taking about garbage from methamphetamine production which apparently
occurred at the home where the children died and now the subject of this
request to search. Additionally, Mr. Rouse had given a statement to your
affiant and Det. Kevin White on July 3, 2012 admitting that he smoked
marijuana with Tasha Moses.
k) Now that it is known that drug use and manufacturing likely occurred at
the home where the children died . . . and that the mother in charge of their
health and welfare may have been under the influence of drugs or
manufacturing drugs while the children were present your affiant is
requesting authorization to search again for this reason. Additionally, a
specific technique known as Ionspectrometry used with a device called an
IonScan will be used to test trace amounts of narcotics for drug residue
which is normally left on surfaces where the manufacturing of drugs and
use of drugs occur.
Based on the information contained in the affidavit, a search warrant for the
Petitioner’s home was issued and executed on July 13, 2012. During the search, police
officers searched a dumpster that was near the home’s garage. Two plastic bags in the
dumpster contained items used to manufacture methamphetamine and items linking the
Petitioner to the bags. Specifically, one of the bags contained a civil warrant issued to the
Petitioner, and the other bag contained a checkbook with the Petitioner’s name on it. The
police searched the Petitioner’s garage and found additional garbage bags containing
items used to manufacture methamphetamine. One of the bags contained a torn
photograph of the Petitioner, and a second bag contained photographs of a small child
who looked like one of the victims. James Derry’s ion scan machine detected
methamphetamine on a piece of aluminum foil found in the garage.
Our supreme court has stated that
- 23 -
[t]he Fourth Amendment to the United States Constitution requires that
search warrants issue only “upon probable cause, supported by Oath or
affirmation.” Article I, Section 7 of the Tennessee Constitution precludes
the issuance of warrants except upon “evidence of the fact committed.”
Therefore, under both the federal and state constitutions, no warrant is to be
issued except upon probable cause. Probable cause has been defined as a
reasonable ground for suspicion, supported by circumstances indicative of
an illegal act.
Henning, 975 S.W.2d at 294 (footnote and citations omitted). “[A] finding of probable
cause supporting issuance of a search warrant must be based upon evidence included in a
written and sworn affidavit.” Id. In examining the affidavit, this court’s standard of
review is limited to whether the issuing magistrate had “‘a substantial basis for
concluding that a search warrant would uncover evidence of wrongdoing.’” State v.
Tuttle, 515 S.W.3d 282, 299 (Tenn. 2017 (quoting State v. Jacumin, 778 S.W.2d 430, 432
(Tenn. 1989)). We note that “‘affidavits must be looked at and read in a commonsense
and practical manner’, and . . . the finding of probable cause by the issuing magistrate is
entitled to great deference.” State v. Bryan, 769 S.W.2d 208, 211 (Tenn. 1989) (quoting
State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982)).
Regarding staleness, our supreme court has explained,
“The time of the occurrence of the facts relied upon by the affiant is .
. . a prime element in establishing probable cause for the issuance of a
search warrant. If the information contained in the affidavit is too old, it is
considered stale” and will be insufficient to establish probable cause. W.
Mark Ward, Tennessee Criminal Trial Practice, § 4.11 (2016-17 ed.) . . . ;
see also Everett v. State, 184 S.W.2d 43, 45 (1944); Welchance v. State,
114 S.W.2d 781, 782 (1938). Nevertheless, there is no hard and fast rule
defining staleness, and “[w]hen the illegal activity described is ongoing,
courts have generally held that [an] affidavit does not become stale with the
passage of time.” State v. Thomas, 818 S.W.2d 350, 357 (Tenn. Crim.
App. 1991); see also State v. Norris, 47 S.W.3d 457, 470-71 (Tenn. Crim.
App. 2000); State v. McCary, 119 S.W.3d 226, 249 (Tenn. Crim. App.
2003).
State v. Tuttle, 515 S.W.3d 282, 301 (Tenn. 2017).
Turning to the instant case, Investigator Scoggins’ affidavit included information
obtained regarding the Petitioner’s drug use near the time of the victims’ deaths, which
- 24 -
was just two weeks prior to the search. Moreover, Investigator Scoggins obtained the
information on July 9 through 11, just days before he submitted the affidavit in support of
the warrant. Therefore, we conclude that the information was not stale and that the
affidavit established probable cause to believe that the Petitioner was using illegal drugs
in her home.
That said, the only basis for believing that the Petitioner was manufacturing
methamphetamine in her home came from the Investigator Scoggins’ brief assertion in
his affidavit that Robert Taylor told him on July 11, 2012, that Taylor heard a
conversation between Scott Rouse and Robert Hamilton in which Hamilton asked Rouse
if Rouse “had gotten all of the garbage cleaned up before the police arrived.” Taylor told
Investigator Scoggins that Rouse and Hamilton were talking about garbage from
methamphetamine production inside the residence. We agree with the Petitioner that the
information in the affidavit did not establish probable cause to believe that evidence of
manufacturing methamphetamine would still be in the home at the time of the search.
Therefore, trial counsel was deficient for failing to file a motion to suppress any evidence
related to the manufacture of methamphetamine, and we turn to whether the Petitioner
was prejudiced by the deficiency.
The State’s theory at trial with regard to the felony murder and aggravated child
neglect convictions was that the victims died due to their being trapped in the Petitioner’s
hot car while she was sleeping and that she was sleeping due to her use of
methamphetamine. On direct appeal of her convictions to this court, this court
summarized the evidence and explained why it was sufficient to support the convictions:
Investigator Scoggins testified that the defendant changed her
explanation several times as to what the victims had been doing while
outside the morning of their deaths. Among other statements, she first said
that they had been playing the yard but later said it was “possible” they had
been under the front porch. When told of the results of the autopsies of the
victims, she said the victims had been beside the motor vehicle but later
admitted she had found the younger victim, R.B., in the right front
passenger seat of the vehicle and L.B. “partially hanging out of the right
rear passenger door.” The defendant and other witnesses, as we have set
out, testified that the victims liked to play in the car.
The State presented testimony that the defendant tested positive for
methamphetamine when she was tested shortly after the bodies of the
victims had been discovered. This drug makes the user sleepy.
Additionally, the evidence showed that the victims liked to play in the
defendant’s car and that on the day of their deaths the temperature was over
- 25 -
100 degrees. The State presented testimony that, because of the broken
interior door handles, it was difficult, if not impossible, to open the doors
from the inside [of] the car. Meteorologist Jan Null testified that the
temperature inside the vehicle would have been about 45 degrees higher
than the outside temperature, which was 101 degrees on the day of the
victims’ deaths. Upon being questioned about the deaths, the defendant
gave conflicting statements as to how long the victims had been
unsupervised and where she had discovered their bodies. Instead of
immediately going to a neighbor’s to seek help, the defendant, instead,
drove the victims to her father’s house, delaying the arrival of emergency
medical personnel. Medical experts testified that the core temperature of
the victims could not have been so high unless they had been in the
defendant’s car.
From all of this proof, a reasonable jury could have concluded that
the defendant was sleeping, as a result of her use of methamphetamine,
while the victims were in the yard, unsupervised, for an unknown period of
time. The defendant knew that the victims liked to play in the car, that the
day was hot, and that the car doors could not be opened by the children
from the inside of the vehicle. Further, a reasonable jury could have
concluded that, to mask her responsibility, the defendant gave conflicting
versions as to what had occurred and how she had found the victims. Thus,
the evidence is sufficient to sustain the defendant’s convictions for felony
murder and aggravated child neglect.
Natasha Moses Bates, No. E2014-00725-CCA-R3-CD, 2015 WL 1593657, at *7. In
addressing whether the trial court erred by failing to sever the drug offenses from the
felony murder and aggravated child neglect offenses, this court noted that “the State
presented no proof that the defendant was inattentive because, as the victims were
trapped and dying, she was facilitating to initiate a process to manufacture
methamphetamine or purchasing ingredients to do so.” Id. at *9. Thus, we conclude that
the Petitioner has failed to show that trial counsel’s failure to file a motion to suppress
evidence of manufacturing methamphetamine would have changed the outcome of her
trial.
In a related argument, the Petitioner contends that trial counsel’s failure to file a
motion to suppress evidence of manufacturing methamphetamine was highly prejudicial
to her at sentencing because the trial court relied on the evidence to order consecutive
sentencing as a dangerous offender. According to the Petitioner, “the trial court
expressed outrage over the conditions the victims were living in. That conclusion had to
come from the photographs obtained in the July 13, 2012 search.” We disagree with the
- 26 -
Petitioner. Investigator Monica Datz testified at trial that on June 28, 2012, she took
photographs inside the Petitioner’s home. Investigator Datz testified about the
photographs, and the State introduced them into evidence. We have reviewed the
photographs, and they show that the victims were living in deplorable conditions with
piles of debris and trash all over the floor in every room, heavily stained mattresses with
no sheets in the bedrooms, a cluttered kitchen counter with dirty dishes piled in the
kitchen sink and a stovetop with food stains on it, and bathroom sinks containing dirt and
trash. Moreover, this court addressed consecutive sentencing in the Petitioner’s direct
appeal of her convictions. Despite this court’s finding that the trial court erred by not
severing the drug offenses from the felony murder and aggravated child neglect offenses,
this court upheld consecutive sentencing for the felony murder convictions, stating,
“Because the defendant in the present appeal, at a minimum, demonstrated extreme
callousness toward the health and welfare of the victims, and the results were fatal, the
trial court, in our view, had a reasonable basis for imposing consecutive sentences.”
Therefore, we again conclude that the Petitioner has failed to demonstrate prejudice.
C. Witness Testimony
The Petitioner contends that she received the ineffective assistance of counsel
because trial counsel failed to “object to the testimony of witnesses who clearly were not
qualified to testify about the subject matter they were asked to testify about, some of
whom acknowledged that lack of qualification.” Specifically, the Petitioner contends that
Investigator Scoggins should not have been allowed to testify about items used in the
manufacture of methamphetamine when he admitted he was not qualified to do so; that
Detective Arthur should not have been allowed to testify about how to cook
methamphetamine when he admitted he was not qualified to testify about the subject; that
Agent Carlisle, who testified as an expert in toxicology and blood testing, should not
have been allowed to testify about the effects of methamphetamine on the human body;
that James Derry, who was certified to operate the ion scanner, should not have been
allowed to testify about the manufacture of methamphetamine; and that Patrick
Vasterling, a social worker, should not have been allowed to testify about the results of
the Petitioner’s urine test. The Petitioner also contends that trial counsel was ineffective
during his direct examination of her because he accused her of lying. The State argues
that counsel was not ineffective. We agree with the State.
We have carefully reviewed the testimony of Investigator Scoggins and Detective
Arthur. Investigator Scoggins testified that he was “not as well versed” in the production
of methamphetamine as some officers, and Detective Arthur testified that he was not an
“expert” in the manufacture of methamphetamine. However, neither officer said he was
not qualified to testify about the process of manufacturing methamphetamine. In fact,
Detective Arthur testified that he had assisted with the investigation of “at least 200”
- 27 -
methamphetamine laboratories. Therefore, we find no merit to the Petitioner’s claim that
trial counsel was ineffective by failing to object to their testimony on the basis that they
were not qualified to testify.
As to Agent Carlisle’s testimony, the witness testified as a toxicology expert, and
the Petitioner offered no proof at the evidentiary hearing that Agent Carlisle was not
qualified to testify about the effects of methamphetamine on the human body. Likewise,
the Petitioner offered no proof that James Derry was not qualified to testify about the
process to manufacture methamphetamine. We note that Derry testified at trial that he
had worked for the Tennessee Meth and Pharmaceutical Task Force since 2004. Finally,
the Petitioner offered no proof at the hearing to show that Patrick Vasterling was not
qualified to testify about the urine test. In any event, given that the Petitioner’s blood test
also showed she had used methamphetamine, the Petitioner has failed to demonstrate
prejudice.
Regarding trial counsel’s direct examination of the Petitioner at trial, trial counsel
testified that although he may have been “hard” on the Petitioner, he was trying to get
“some real emotion” from her. The post-conviction court found that trial counsel’s
method of questioning the Petitioner was part of his trial strategy. This court has stated
that “[w]hen reviewing trial counsel’s actions, this court should not use the benefit of
hindsight to second-guess trial strategy and criticize counsel’s tactics.” Irick v. State, 973
S.W.2d 643, 652 (Tenn. Crim. App. 1998). In any event, we have reviewed the
Petitioner’s testimony and see nothing improper in trial counsel’s questioning of the
Petitioner. Although trial counsel was accusatory at times, the Petitioner fails to
acknowledge the difficult position in which she put trial counsel. The Petitioner first told
Investigator Scoggins that she found the victims in the yard but then told him she found
the victims in the car. At trial, she testified that she found the victims in the yard, which
totally contradicted the State’s proof. Accordingly, we agree with the post-conviction
court that trial counsel was not ineffective.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
- 28 -