IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 26, 2005 

CAROLYN WOOSTER v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Dickson County

No. CR- 6603 Robert E. Burch, Judge

No. M2005-01217-CCA-R3-PC - Filed December 12, 2005

A Dickson County jury convicted the Petitioner, Carolyn Wooster, of aggravated child abuse and

neglect and she was sentenced to fifteen years in prison. This court affirmed the conviction on direct

appeal and the Tennessee Supreme Court denied review. The Petitioner filed a petition for postconviction relief alleging ineffective assistance of counsel, and the post-conviction court dismissed

her petition. The Petitioner appeals, contending that her trial counsel rendered ineffective assistance

of counsel at trial by failing to adequately investigate her case. After thoroughly reviewing the

record and the applicable law, we conclude that there exists no reversible error. Accordingly, we

affirm the judgment of the post-conviction court.

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

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which THOMAS T.WOODALL and

JAMES CURWOOD WITT, JJ., joined.

Geoffrey Coston, Franklin, Tennessee for the Appellant, Carolyn Wooster 

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Dan

M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Facts on Direct Appeal

On direct appeal, this Court affirmed the Petitioner’s convictions and sentence. In our

opinion, we summarized the facts as follows:

At approximately 7:00 A.M. on March 5, 1998, the [Petitioner] brought the

victim, a newborn girl, to Horizon Medical Center in Dickson. The defendant

explained that she had given birth at home the night before and desired to offer the
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infant for adoption.

Dr. Valerie Beck, a pediatrician at Horizon Medical Center, examined the

infant in the labor and delivery area at about 7:15 A.M. Because the victim’s heart

rate was only about 70 beats per minute, Dr. Beck classified the victim’s condition

as critical. She explained that a newly born, crying infant should have a heart rate of

between 130 and 140 beats per minute. Dr. Beck observed that the victim was

cyanotic and grunting, indicating that the victim was in distress. She determined that

there was a substantial risk of death.

At trial, Dr. Beck testified that the low heart rate was due to a low body

temperature. According to Dr. Beck, the heart rate drops when exposed to cold

temperatures, impairing the heart’s ability to operate correctly. When neither a

digital thermometer or a glass thermometer registered a body temperature, Dr. Beck

made a diagnosis of severe hypothermia. The victim was placed under a radiant

warmer with heated saline bags wrapped in warm towels to raise her temperature.

By 7:40 A.M., the baby’s temperature had risen to 97 degrees.

Helen Murphy, a registered nurse testified that the defendant claimed that she

had given birth at her home on the previous evening and had been assisted by her

boyfriend and two nurses. According to Ms. Murphy, the defendant claimed that she

had visited an obstetrician on six separate occasions before moving to Tennessee.

The defendant informed Ms. Murphy that her water had broken between 10:30 and

11:00 P.M. and that her contractions began immediately thereafter. She explained

that she came to the hospital in order to offer the infant for adoption. Because the

defendant claimed that she was not experiencing any bleeding, Ms. Murphy initially

suspected that the defendant might not have given birth to the baby. Because her

suspicions were further aroused when she discovered that the defendant was not

producing breast milk and had declined a physical examination, Ms. Murphy asked

the Dickson Police Department to investigate.

Later, the defendant consented to a physical examination. After being

examined, she was interviewed by Detective Mike Fleaner of the Dickson Police

Department and Rosie Skinner of the Department of Children’s Services. The

defendant again claimed that she had given birth at home and that her boyfriend and

two nurses had assisted in the delivery. During the interview, the defendant

expressed particular concern about being late for work.

Afterinterviewing the defendant, Detective Fleaner and Ms. Skinner traveled

to the defendant’s residence to question her boyfriend, Jason Huler. According to

Detective Fleaner, Huler stated that he was unaware that the defendant was pregnant

and had not helped in any delivery. After interviewing Huler, Detective Fleaner

drove to the defendant’s place of employment and questioned her a second time.
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When he arrived, the defendant was in her vehicle, a camper, which was parked in

her employer’s lot.

After receiving permission to search the camper, Detective Fleaner found a

shirt that the defendant had used to clean the infant. Upon further examination at the

police department, the defendant admitted that she was alone at the time of birth, and

had placed the victim under the house during the course of the night.

At trial, the defendant confirmed that she was alone when she gave birth to

a baby girl at her home at approximately 6:20 P.M. on March 4, 1998. According to

the defendant, her water broke two and a half days before the delivery. She held and

breast fed the baby until about 10:00 P.M., when her boyfriend, who was unaware of

her pregnancy, was scheduled to return from work. The defendant stated that she

wrapped the infant in a shirt, placed her in a cardboard box, covered her with two

towels, and then placed the box in a storage area underneath her house.

The defendant acknowledged that she heard the baby cry around 1:00 A.M.,

but did not check on her. After hearing whimpering at 4:00 A.M., the defendant

claimed that she went to the storage area, held the infant for a few minutes, and then

placed her back in the box. Even though she detected that the infant was cold, the

defendant conceded that she returned to the house, leaving the baby outside. The

defendant estimated that about one and a half hours later, she came back to the baby

and took her into a camper that was parked outside. The defendant testified that she

cleaned the baby and attempted to breast feed her while in the camper. She stated

that when the baby would not nurse, she took the infant into her residence and at 6:45

A.M., she drove her to Horizon Medical Center.

State v. Carolyn A. Wooster, No.M2000-02992-CCA-R3-CD, 2003 WL 440233, at *1-2 (Tenn.

Crim. App., at Nashville, Mar. 18, 2002), perm. app. denied (Tenn. Sept. 23, 2003). 

At trial, Detective Fleaner testified that he called the National Weather Service in order to

obtain the temperature for March 4, 1998, and the National Weather Service reported that the

temperature was 31 degrees at the Nashville airport. Trial counsel told the trial court judge that he

had not anticipated any testimony about the temperature for the night in question and would need

time to rebut the officer’s testimony. The trial court observed that “most prudent lawyers would

have anticipated that the temperature on this date would have been an issue and would have come

prepared to prove it if they thought it was going to be required.” Trial counsel said that he called the

National Weather Service in Nashville, and they said the temperature was 47 degrees on March 4,

1998, but that he did not have any proof to offer into evidence. The trial court judge told trial

counsel that he could bring in evidence about the temperature on the following day of trial. The trial

court noted that “I think either temperature would probably be inappropriate to leave a newly born

infant outside in. This child didn’t freeze to death. This child was cold. It’s body temperature was

low. I think either one would do that.” 
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B. Post-conviction Facts

A copy of the post-conviction hearing transcript is not in the record on appeal before this

Court. It is the duty of the appellant to provide a record which conveys a fair, accurate, and complete

account of what transpired with regard to the issues which form the basis of the appeal. See Tenn.

R. App. P. 24(b); see State v.. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Normally, when

presented with an inadequate record on appeal, this Court must presume that the trial court ruled

correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). Under the circumstances

of this case, however, we believe the absence of the transcript of the post-conviction court’s hearing

is not fatal to appellate review. We find that the record is sufficient to determine the issues raised

on appeal. Thus, we will review the issues on the merits. 

 The post-conviction court's findings of fact are conclusive on appeal unless the evidence

preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Absent a record

which would indicate otherwise, we must presume that the findings of the post-conviction court are

correct. According to the post-conviction court’s findings, at the post-conviction hearing, the

Petitioner’s trial counsel testified that he did not contest the actual temperature on the night that the

baby was kept under the house and that he did not know why he did not investigate this issue.

According to the detailed memorandum opinion filed by the post-conviction court, trial counsel also

seemingly testified that his trial tactic was to “show that [the Petitioner] was a good person.” 

II. Analysis

On appeal, the Petitioner contends that, because her trial counsel was ineffective, the post

conviction-court erred when it dismissed her petition. State v. Burns, 6 S.W.3d 453, 461 (Tenn.

1999). In order to obtain post-conviction relief, a petitioner must show that his or her conviction or

sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.

§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition

for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).

Upon review, this Court will not re-weigh or re-evaluate the evidence below; all questions

concerning the credibility of witnesses, the weight and value to be given their testimony, and the

factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.

Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.

1997). A post-conviction court’s factual findings are subject to a de novo review by this Court;

however, we must accord these factual findings a presumption of correctness, which is overcome

only when a preponderance of the evidence is contrary to the post-conviction court’s factual findings.

Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are

subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed

question of law and fact and, as such, is subject to de novo review. Burns, 6 S.W.3d at 461.

The right of a criminally accused to representation is guaranteed by both the Sixth
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Amendment to the United States Constitution and Article I, section 9, of the Tennessee Constitution.

State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); Burns, 6 S.W.3d at 461; Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “reasonably

effective” assistance. Burns, 6 S.W.3d at 461. The following two-prong test directs a court’s

evaluation of a claim for effectiveness:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes

both showings, it cannot be said that the conviction or death sentence resulted from

a breakdown in the adversary process that renders the result unreliable.

State v. Melson, 772 S.W.2d 417, 419 (Tenn. 1989). To prevail on a claim of ineffective assistance

of counsel, a petitioner must show that “counsel’s representation fell below an objective standard

of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). When evaluating an ineffective assistance of counsel claim, the

reviewing court should judge the attorney’s performance within the context of the case as a whole,

taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). 

The reviewing court must evaluate the questionable conduct from the attorney’s perspective

at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing

so, the reviewing court must be highly deferential and “should indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6

S.W.3d at 462. Finally, we note that criminal petitioners are not entitled to perfect representation,

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim.

App. 1996). In other words, “in considering claims of ineffective assistance of counsel, ‘we address

not what is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp,

483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665, n.38 (1984)). 

Counsel should not be deemed to have been ineffective merely because a different procedure

or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-80

(Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the defense does

not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515 (citation

omitted); Thomas Brandon Booker v. State, No. W2003- 00961-CCA-R3-PC, 2004 WL 587644, at

*4 (Tenn. Crim. App., at Jackson, Mar. 24, 2004), perm. app. denied (Tenn. 2004). However,

deference to matters of strategy and tactical choices applies only if the choices are informed ones

based upon adequate preparation. House, 44 S.W.3d at 515.

In order to render effective assistance, counsel must make all reasonable investigations
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relevant to the case or must make a reasonable decision that renders particular investigations

unnecessary. Burns, 6 S.W.3d at 462. However, “In any ineffectiveness case, a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel’s judgments.” Id. Failure to conduct a reasonable

investigation constitutes deficient performance. Id.

If the petitioner shows that counsel’s representation fell below a reasonable standard, then

the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587

(Tenn. 2002). To satisfy the requirement of prejudice, a petitioner must show a reasonable

probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must

be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875

S.W.2d 662, 665 (Tenn. 1994).

 On appeal, the Petitioner claims that her trial counsel failed to function as effective counsel

as guaranteed by both the Tennessee and United States Constitutions. In this regard, she asserts that

she was denied the effective assistance of counsel because Counsel failed to adequately investigate

her case and to present, at trial, evidence about the temperature on the night of the crime. The

Petitioner asserts that Counsel’s deficient performance undermines confidence in the outcome of her

trial because the State needed to show that the baby was exposed to extremely cold temperatures in

order to establish a link between the Petitioner’s conduct and the baby’s injury. The Petitioner also

contends that Counsel’s conduct prejudiced the Petitioner’s case because the issue of temperature

was essential to proving that the Petitioner knowingly exposed the child to the risk of substantial

bodily injury. The State asserts that the Petitioner failed to demonstrate that her Counsel’s

performance was deficient and failed to show how any alleged errors constituted prejudice sufficient

to undermine confidence in the outcome of her jury trial. We agree with the State.

In its opinion, the post-conviction court stated that:

Assuming for the purposes of argument that trial counsel’s performance was

deficient in failing to establish that the actual temperature was some sixteen degrees

warmer than that presented in the State’s proof, Petitioner must still establish that

actual prejudice to Petitioner was caused by the deficient performance . . . . 

At Petitioner’s trial, Dr. Valerie Beck testified that the baby’s body

temperature was so low that it could not be measured by the instruments available.

Dr. Beck testified that the baby was suffering from severe hypothermia. She further

testified that, when placed in a warm environment, the baby’s body temperature rose

to 97 degrees in fewer than thirty minutes. Dr. Beck testified that the baby was in

acute distress and that there was a substantial risk of death from this condition. This

being the case, it matters little whether the outside temperature was sixteen degrees
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warmer or not. The fact is that, whatever the temperature, the baby was in imminent

danger of death from hypothermia. . . . 

Certainly, Petitioner was aware of [what] the outside temperature was, at

most, in the forties and that this situation would be dangerous to the health of a

newborn. To say that Petitioner did not act knowingly in this situation, whether the

temperature was in the 20's or 40's, defies logic. 

No prejudicial deficiency in the investigation of Petitioner’s trial counsel has

been shown by the proof. The issue is without merit.

The evidence in the record does not preponderate against the findings of the post-conviction

court. Although, as previously noted, the transcript of the evidence at the post-conviction hearing

is not included in the record on appeal, it would appear from the memorandum opinion filed by the

post-conviction court that the Petitioner presented no evidence to establish that Counsel’s alleged

failure to investigate the temperature on the night in question undermined confidence in the outcome

of her trial. Even if the temperature was 47 degrees on the night of the crime, it is nonetheless

abundantly clear in our view that the Petitioner subjected her baby to abuse and neglect by leaving

the baby outside overnight. Whether the temperature was 31 degrees or 47 degrees, the baby’s body

temperature became too cold, and the baby developed hypothermia due to the Petitioner’s actions.

We conclude, as did the post-conviction court, that any alleged deficient representation by counsel

does not undermine our confidence in the jury’s determination that the Petitioner knowingly

subjected her baby to the risk of serious bodily injury and imminent danger of death. Therefore, the

Petitioner is not entitled to relief on this issue. 

III. Conclusion

In accordance with the foregoing authorities and reasoning, we affirm the judgment of the

post-conviction court.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE