IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 27, 2012 at Knoxville

JOE M. GILBERT v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Williamson County

No. CR046406 Robbie T. Beal, Judge

No. M2012-01440-CCA-R3-PC - Filed January 15, 2013

A Williamson county jury convicted the Petitioner, Joe M. Gilbert, of aggravated child abuse

in 2006, and the trial court sentenced the Petitioner to fifteen years in prison. In 2012, the

Petitioner filed a writ of error coram nobis, which the trial court dismissed without a hearing

after finding that coram nobis relief was not applicable to the Petitioner’s claim. The

Petitioner appeals, claiming that the trial court erred by summarily dismissing the petition

without an evidentiary hearing. After a thorough review of the record, the briefs, and

relevant authorities, we affirm the trial court’s judgment.

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

ROBERTW.WEDEMEYER,J., delivered the opinion of the Court, in which D.KELLY THOMAS,

JR., and CAMILLE R. MCMULLEN, JJ., joined.

Joe M. Gilbert, Nashville, Tennessee, Pro Se.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Kim Helper, District Attorney General; and Mary Katharine White, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Background

In 2006, a Williamson county jury convicted the Petitioner of aggravated child abuse

of a child under the age of six, and the trial court sentenced him to serve fifteen years in

prison. The Petitioner appealed, and this Court affirmed his convictions. State v. Joe M.

Gilbert, No. M2007-00260-CCA-R3-CD, 2008 WL 941801 (Tenn. Crim. App., at Nashville,

April 8, 2008), perm. app. denied (Tenn. Dec. 8, 2008).
On direct appeal, this Court summarized the facts presented at the Petitioner’s trial as

follows:

The defendant’s ex-wife, Terri Gilbert, testified that on the date of the

victim’s injuries, December 9, 2004, the [Petitioner] worked part-time on

weekends at a golf course. During the work week days, the [Petitioner] took

care of [ ], the victim, and Ms. Gilbert took their then-two-year-old daughter

to a day care center. On December 9, the [Petitioner] called Ms. Gilbert at

work and told her he had fallen while holding the victim and thought that the

victim might have hit his head. The [Petitioner] told her that the victim had

lost consciousness but was revived by the [Petitioner]’s CPR efforts. Ms.

Gilbert urged the [Petitioner] to call a doctor. The [Petitioner] called Ms.

Gilbert after he had called Harpeth Pediatrics. The [Petitioner] assured her

that the nurse at Harpeth Pediatrics had said that the victim should be watched

but, in the absence of twitching or other unusual behavior, there was no

immediate concern. Ms. Gilbert returned home at 6:00 p.m. and examined the

victim. She noticed twitching in his eyes and limbs. Ms. Gilbert took the

victim to Williamson Medical Center, and he was then transported by

ambulance to Vanderbilt Hospital. The victim was placed in the pediatric

intensive care unit for one week and was later moved to a room for a week.

He was discharged after being fitted with a feeding tube, which was utilized

for nine months. Ms. Gilbert stated that, although the victim was nineteen

months old at the time of trial, he was not developing on a normal basis. The

victim only began crawling at sixteen months and could not pull up to his feet,

stand, or walk. Ms. Gilbert and the [Petitioner] were divorced prior to the

[Petitioner]’s trial.

Lisa Albonetti testified that she was a registered nurse employed at

Harpeth Pediatrics. Her duties involved supervision of seven other nurses and

serving as the telephone triage nurse. As a triage nurse, she was trained to

identify potential problems by asking appropriate questions and to give

necessary precautions or referrals. Ms. Albonetti recalled talking with the

[Petitioner] on December 9. The [Petitioner] told her that he had been feeding

the victim a bottle when he got up in response to his telephone ringing. The

[Petitioner] tripped over their dog and fell while holding the victim. After

relating these events, the [Petitioner] then essentially was silent. In response

to Ms. Albonetti’s questions, the [Petitioner] denied that the victim hit his

head, lost consciousness, vomited, or ceased breathing. She explained

symptoms for the [Petitioner] to watch for and instructed him to call back if

any of the symptoms surfaced.

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Dr. Ida Yared, a licensed pediatrician who, in addition to her practice,

also teaches medical students, testified that she was a member of the

Vanderbilt Pediatric Care Team. The Care Team is made up of pediatricians

and includessocial workers who evaluate children suspected of non-accidental

injury. On December 9, Dr. Yared examined the victim, discussed his injuries

with other treating physicians, and examined x-ray findings. Dr. Yared also

spoke with the [Petitioner]. The [Petitioner] told her that he tripped over the

dog when he got up to answer the telephone. The [Petitioner] stated he was

carrying the victim when he fell and, in falling, may have hit the chair. The

[Petitioner] did not say he had shaken the victim but said he had “wiggled” the

victim during the victim’s distress. Dr. Yared testified that, based on CT Scan

and MRI imaging, the victim had extensive injuries that were not consistent

with the accident described by the [Petitioner]. The tests showed bleeding in

areas around the brain and the appearance of bruising in some areas of the

brain. The victim also suffered retinal hemorrhages and seizure activity. Dr.

Yared opined that the extensive injuries received would not have resulted from

the fall as described by the [Petitioner]. She testified that, to a reasonable

degree of medical certainty, the injuries were caused by vigorous shaking of

the victim which caused the victim’s head to suddenly accelerate and then

decelerate. Such motion causes tearing of small veins attaching the brain and

skull and consequential bleeding. Dr. Yared stated that these injuries can

occur in the absence of shaking and gave examples of an automobile accident

or a “very dramatic fall.” She stated that she was “one hundred percent

certain” that the victim’s injuries did not relate to the victim's premature birth.

Dr. Yared stated that, among victims of Shaken Baby Syndrome, there is a

25% mortality rate and that 50% of survivors will have some significant

impairment such as paralysis, delayed development, or blindness.

Dr. Jennifer Myers, who had been the victim’s pediatrician at Harpeth

Pediatrics, testified that the victim was born at thirty-five weeks, was treated

for a Group B strep condition, and was sent home after ten days in the hospital.

An ultrasound at that time showed the victim to be normal. Dr. Myers had

seen the victim on five occasions since his injuries on December 9, 2004. She

noted that he was not visually tracking objects or blinking. The victim’s

developmental skills were significantly delayed. At age nine months, he had

poor truncal strength, his head “lagged” if picked up. At the age of twelve

months, the victim could not pick up small objects and was not creeping or

crawling. She stated that the victim will probably have a learning disability

and possibly may never walk.

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Dr. Deron Sharpe, a specialist in pediatric neurology at Vanderbilt

Medical Center, became involved in the victim’s treatment due to the seizures.

Dr. Sharpe testified that the hemorrhaging of the brain can exert pressure and

can cause continuing injury. For treatment and to preventsecondary injury, the

victim was given phenobarbital to create a medically-induced coma. In

explaining Shaken Baby Syndrome, Dr. Sharpe testified that shaking a baby’s

body can cause the head of the baby to acquire a high velocity due to the

“relatively floppy neck” of infants. This creates internal injuries due to nerves

within the brain pulling apart, often accompanied by subdural, epidural, or

subarachnoid hemorrhages and retinal hemorrhages. These internal injuries

are disproportionate to the traumatic injuries exhibited on the outside of the

head. Dr. Sharpe stated that, in his opinion, the victim’s injuries were caused

by shaking. He further opined that it caused a substantial risk of death and that

the victim will likely suffer from neurological impairments. Relying on

statistics, Dr. Sharpe stated that these impairments could include mental

retardation, severe behavioral manifestations as a teenager, motor deficits,

epilepsy, and visual impairment.

Detective Steve Cretin of the Spring Hill Police Department was

contacted by a social worker at Vanderbilt Medical Center on December 10,

2004. He spoke with the victim’s parents separately at Vanderbilt. The

[Petitioner] told Detective Cretin that he had fallen over the family dog while

holding the victim. The [Petitioner] said the victim began crying, and he

placed the victim on the changing table to examine him for injuries. The

victim began vomiting from the mouth and nose and stopped breathing. The

[Petitioner] said he was able to revive the victim by using CPR. After this, the

[Petitioner] carried the victim to a staff meeting at his part-time employment,

Kings Creek Golf Club. When the victim showed signs of agitation, the

[Petitioner] left the staff meeting and returned home. The [Petitioner] then

called his wife and told her about the falling incident. The [Petitioner] told

Detective Cretin that he had called a nurse at Harpeth Pediatrics and related

the events, including the vomiting and unconsciousness of the victim. The

[Petitioner] said the nurse advised him to watch for any twitching and, if seen,

to take the victim to the emergency room.

On December 14, Detective Cretin, with Detective Adrian Breedlove,

interviewed the [Petitioner] again, utilizing DVD recording equipment. The

redacted interview was shown to the jury. The [Petitioner] first related how

he had fallen while holding the victim. The [Petitioner] said he had a staff

meeting at his place of employment at 10:00 a.m. He stated that he rose from

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a chair in response to either the telephone or microwave oven signal. He fell

over the dog, then against the chair, finally to the floor. The victim began to

cry loudly. The [Petitioner] placed him on the changing table, and the victim

began vomiting from his nose and mouth. The [Petitioner] cleaned the vomit

using a suction bulb, but the victim stopped breathing and became limp. The

defendant revived the victim using CPR and cleaned him. He said the victim

seemed alert, and he dressed him and went to the staff meeting. He stayed

only about five minutes due to the victim’s “fussing” noises. The [Petitioner]

said he called his wife, who urged him to call their doctor. He spoke with a

nurse, Lisa, at Harpeth Pediatrics. The [Petitioner] said he related the victim’s

episode of vomiting and loss of consciousness. The [Petitioner] said he fed the

victim about three times that afternoon, and the victim slept intermittently.

Ms. Gilbert returned home at six that afternoon. She noticed the victim

twitching and carried him to Williamson County Hospital emergency room.

The victim was then transported to Vanderbilt Medical Center by ambulance.

In response to the detectives’ questions, the [Petitioner] admitted that,

in December of 2004, a lack of income had been stressful on his household as

his wife had only recently obtained employment. After more confrontational

questioning, the [Petitioner] admitted that he was scared. The [Petitioner]

admitted that he shook the victim but denied that it was out of anger. He said

that he shook the victim to try to revive him from unconsciousness. The

[Petitioner] said he panicked and may have shaken the victim for half a

minute. The [Petitioner] insisted that he had fallen with the victim and that he

shook him afterwards. When asked if the shaking took place on the floor, the

[Petitioner] responded:

No. He was crying. I picked him up trying to pacify him, he

was crying more and more and more and more, and then I shook

him. And then I shook him again after he was unconscious just

trying to revive him. And then I got my wits together enough to

save him.

The [Petitioner] said that he lied about not shaking the victim and explained

as follows:

Well, the fact that I shook him after we fell, you know, he

wouldn’t stop crying and I shook him and that’s what made him

get sick and lose his breath and I ended up having to do all the

other stuff to get him back and shaking him in between too.

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At another point in the interview, the [Petitioner] stated that he shook the

victim while holding him by his feet. He said that the victim’s head “flopping

back and forth” concerned him.

Dax Dunn, a pediatric optometrist, testified on the [Petitioner’s] behalf.

He stated that he conducted a routine exam on the victim on November 9,

2005. He did not detect any signs of retinal hemorrhaging nor signs of trauma

to the victim. On cross-examination, he admitted that retinal hemorrhaging

eleven months before should have been resolved at the time of his

examination. He further stated that he could not state whether or not the

victim had suffered from Shaken Baby Syndrome.

The [Petitioner] testified at trial and again related that he fell while

holding the victim and had to revive him from unconsciousness. The

[Petitioner] insisted that he did not knowingly or intentionally cause the

victim’s injuries. On cross-examination, the [Petitioner] accepted

responsibility for the victim’s injuries sustained while he was in his care. The

[Petitioner] further stated that he must have shaken the victim but did not

recall how it happened.

Gilbert, 2008 WL 941801, at *1-4.

On April 11, 2012, the Petitioner filed a petition for writ of error coram nobis, to

which the State filed a response. In his motion, the Petitioner asserted that there existed new

evidence which established his innocence.

The Petitioner asserted that he learned in October 2011 that the prosecuting officer in

his case was dismissed from the police department in June 2006 for conduct unbecoming a

police official. The Petitioner claimed that this information should have been made known

1

to the trial court and his attorney so that “these allegations” could have been presented and

disputed during his motion for new trial. The Petitioner argued that the State was aware of

the officer’s dismissal and failed to notify the Petitioner. He stated that this information

“could have potentially changed the outcome of the case” as to the credibility of this officer.

Articles attached to the Petitioner’s brief indicate that a thirteen-year-old girl alleged that the 1

officer, while in Florida attending a training, approached her and made inappropriate comments. The girl

reported the comments to security. Police officers investigating the charges were unable to charge the officer

and the officer denied making any inappropriate statements to the thirteen-year-old girl. 

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The trial court denied the petition without a hearing. In its written order, the trial court

found that “the allegations made by the Petitioner in this cause against one of the arresting

officers [do] not constitute new evidence and would have limited, if any, potential affect on

the outcome of the trial of this matter.”

It is from this judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that there is new evidence that was unavailable to

him that he could have used to challenge his conviction in a motion for new trial and also on

direct appeal. The Petitioner asserts that the discovery of the officer’s termination required

an evidentiary hearing on his claims. The State responds that because this evidence is not

“new,” was not unavailable to the Petitioner, and is not evidence that may have led to a

different result, the trial court properly dismissed the petition. We agree with the State.

A writ of error coram nobis is available to a defendant in a criminal prosecution.

T.C.A. § 40-26-105(a) (2009). The statute governing coram nobis relief provides that relief

under its provisions only lies for newly discovered evidence “relating to matters which were

litigated at the trial if the judge determines that such evidence may have resulted in a different

judgment, had it been presented at the trial.” T.C.A. § 40-26-105 (2009).

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

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

141, 144 (Tenn. 2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A

writ of error coram nobis is an “extraordinary procedural remedy,” filling only a “slight gap

into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999); State v.

Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). As previously noted by our Court,

“the purpose of this remedy ‘is to bring to the attention of the [trial] court some fact unknown

to the court, which if known would have resulted in a different judgment.’” State v. Hart, 911

S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d

165, 167 (Tenn. 1966)).

To establish that he is entitled to a new trial, the Petitioner must show: (a) the grounds

and the nature of the newly discovered evidence; (b) why the admissibility of the newly

discovered evidence may have resulted in a different judgment if the evidence had been

admitted at the previous trial; (c) that the Petitioner was without fault in failing to present the

newly discovered evidence at the appropriate time; and (d) the relief sought. Hart, 911

S.W.2d at 374-75. Affidavits should be filed in support of the petition. Id. at 375.

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The grounds for seeking a petition for writ of error coram nobis are not limited

to specific categories, as are the grounds for reopening a post-conviction

petition. Coram nobis claims may be based upon any “newly discovered

evidence relating to matters litigated at the trial” so long as the petitioner also

establishes that the petitioner was “without fault” in failing to present the

evidence at the proper time. Coram nobis claims therefore are singularly

fact-intensive. Unlike motions to reopen, coram nobis claims are not easily

resolved on the face of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

“Similar to habeas corpus hearings, coram nobis evidentiary hearings are not mandated

by statute in every case.” Richard Hale Austin v. State, No. W2005-02591-CCA-R3-CO,

2006 WL 3626332, *6 (Tenn. Crim. App., at Jackson, Dec. 13, 2006) no Tenn. R. App. P. 11

application filed. A petition of either type “‘may be dismissed without a hearing, and without

the appointment of counsel for a hearing’ if the petition does not allege facts showing that the

petitioner is entitled to relief.” Id. (quoting State ex rel. Edmondson v. Henderson, 421

S.W.2d 635, 636 (Tenn. 1967)).

We first note that the petition was not timely filed. Coram nobis claims are subject to

a one-year statute of limitations that is computed from the date the judgment of the trial court

becomes final. T.C.A. § 27-7-103 (2009); State v. Mixon, 983 S.W.2d 661, 670 (Tenn.1999).

The Petitioner was convicted in 2006 and he filed his coram nobis petition in 2012.

Further, the Petitioner has failed to show that the evidence is “newly” discovered, was

unavailable to the Petitioner at the time of his trial, and may have resulted in a different

judgment at his trial. The documents attached to the petition in support of the Petitioner’s

claim document media coverage of the allegations against the officer in June 2006,

undermining the Petitioner’s assertion that this evidence is “new.”

The Petitioner has also failed to show that evidence of the officer’s alleged conduct

may have resulted in a different judgment. Evidence of the officer’s alleged unprofessional

conduct serves no purpose other than to impeach the officer’s credibility. As this Court stated

in State v. Hart, evidence that serves no purpose other than to contradict or impeach “will not

justify the granting of a petition for the writ of error coram nobis when the evidence, if

introduced, would not have resulted in a different judgment.” 911 S.W.2d at 375. Even if the

Petitioner had impeached the officer’s credibility with the allegations of unprofessional

conduct, the jury still viewed the Petitioner’s videotaped confessions to repeatedly shaking

his baby and medical testimony supporting the tragic result of such conduct. The Petitioner

has failed to show how the prosecuting officer’s allegedly inappropriate comments to a minor

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in Florida may have changed the result of the Petitioner’s trial or sentencing hearing.

Accordingly, because the Petitioner failed to present facts in his petition that entitle

him to coram nobis relief, the trial court did not err in summarily dismissing the petition.

Therefore, the Petitioner is not entitled to relief.

II. Conclusion

After a thorough review of the record and the applicable law, we affirm the trial court’s

judgment.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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