IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 6, 2018

TINA NELSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lauderdale County

No. 9132 Joe H. Walker, III, Judge

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No. W2017-00343-CCA-R3-PC

___________________________________

A jury convicted the Petitioner, Tina Nelson, of first degree felony murder committed 

during the perpetration of aggravated child abuse and of the underlying felony of 

aggravated child abuse. She petitioned for post-conviction relief, asserting ineffective 

assistance of counsel, and her petition was denied. On appeal, the Petitioner alleges that 

she is entitled to post-conviction relief because her trial counsel failed to properly 

investigate her case or present witnesses, failed to move for a severance, failed to 

properly challenge testimony that she showed no emotion, and failed to establish that her 

mental impairment prevented her from assisting in her own defense. After a thorough 

review of the record, we affirm the denial of post-conviction relief. 

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Scott A. Lovelace, Ripley, Tennessee, for the appellant, Tina Nelson.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant 

Attorney General; Mark E. Davidson, District Attorney General; and Julie Pillow, 

Assistant District Attorney General, for the appellee, State of Tennessee.

05/17/2018
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OPINION

FACTUAL AND PROCEDURAL HISTORY

Trial

The Petitioner’s convictions stem from the death of her two-month-old daughter 

on May 11, 2011. State v. Gregory Nelson and Tina Nelson, No. W2014-00494-CCAR3-CD(C), 2015 WL 2128598, at *1 (Tenn. Crim. App. May 5, 2015), perm. app. denied 

(Tenn. Sept. 21, 2015). The victim sustained severe injuries, including brain 

hemorrhages, retinal and optic hemorrhages, and numerous broken ribs in various stages 

of healing. Id. at *1. The Petitioner, who has an IQ of 53, and her husband, Mr. Gregory 

Nelson, were tried together and both convicted of first degree felony murder and 

aggravated child abuse. Id.

The victim was born prematurely, weighing a little over three pounds at birth, and

she remained in the hospital for approximately two weeks. Id. at *4-5, 9. The Petitioner 

and Mr. Nelson could not drive, and they did not visit the victim in the hospital until

informed by the Department of Children’s Services (“DCS”) that they would not be 

permitted to take the victim home unless they visited and bonded with her. Id. at *5. The 

victim suffered from intrauterine growth retardation, and during her hospital stay, she 

was given a cranial ultrasound and an MRI which showed a “[c]ontour irregularity,”

which “may be an unusual location for hemorrhage.” Id. 

The Petitioner and Mr. Nelson met numerous times with a DCS employee, Ms. 

Zandra Carter-Mann, regarding the welfare and care of the victim and her older sister. 

Ms. Carter-Mann testified that Mr. Nelson had become aggressive with hospital staff and 

verbally aggressive to DCS and school employees. Id. at *5-6. The Petitioner followed 

Mr. Nelson’s occasional orders to refuse to talk to Ms. Carter-Mann, and she defended 

his aggressiveness. Id. at *6. Ms. Dawn Hemby, a youth services officer with the 

Lauderdale County Juvenile Court, also testified that the Petitioner was “bullied by” Mr. 

Nelson. Id. at *8-9.

The State presented witnesses who testified about the victim’s condition prior to 

her death. On April 20, 2011, the Petitioner and Mr. Nelson’s older daughter had a 

pending truancy case, and Ms. Kim Coffee, an employee of the Lauderdale County 

Juvenile Court, testified regarding the victim’s well-being at the time of a hearing related 

to the truancy case. Id. at *7. The victim had a red spot on her eye and “just stared into 

space” rather than interacting with those around her. Id. The victim was outside with her 

family for two or three hours dressed only in very lightweight clothing and a light blanket 

despite the cold. Id. The Nelsons told Ms. Coffee that they did not have transportation 
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and were afraid they would miss their ride. Id. Ms. Hemby confirmed Ms. Coffee’s 

testimony that the Nelsons were outside in the cold with the victim, who appeared 

“[a]lmost lifeless” and had a blood spot on the white of her eye. Id. at *8. Ms. Coffee

and Ms. Hemby urged the family to consult a physician regarding the victim. Id. 

The Petitioner and Mr. Nelson took the victim to the pediatrician four times after 

her discharge from the hospital. Id. at *9. On at least one occasion, Mr. Nelson told a 

social worker at the health department that the victim was breathing strangely and 

spitting up. Id. On April 28, 2011, after the Nelsons were told by Ms. Hemby and Ms. 

Coffee to check on the red spot in the victim’s eye, the Petitioner told a social worker that 

she had made a doctor’s appointment for the victim but that it was too cold and rainy to 

take the victim and that she would reschedule the appointment. Id. at *9-10. 

Mr. Nelson’s brother, who was also intellectually disabled, stayed with the 

Nelsons for a period of time, along with his girlfriend and his girlfriend’s two children. 

The defense posited that Mr. Nelson’s brother or R.C., the twelve-year-old son of Mr. 

Nelson’s brother’s girlfriend, might have been responsible for the victim’s injuries. The 

evidence showed that relations between the Nelsons and Mr. Nelson’s brother were 

generally strained, and the Nelsons believed that Mr. Nelson’s brother had told DCS that 

they were abusing their older child. Id. at *8. Ms. Coffee testified that she received an 

anonymous call that the Nelsons were physically abusing their older daughter, but a 

welfare check revealed no injuries on the child. Id. Ms. Coffee also witnessed Mr. 

Nelson yell and act “out of control” regarding the incident, and he accused his brother of 

fabricating the report. Id. Ms. Hemby confirmed that the report appeared unfounded and 

that the child, who was not with her parents at the time, blamed her uncle for the report. 

Id. at *9. 

Mr. Nelson testified at trial that the victim injured her head when R.C. pushed the 

Petitioner down while the Petitioner was holding the victim. Id. at *12. He also testified 

about a time that he had left the victim alone with his brother. Mr. Nelson heard the 

victim crying from another room, and when he entered, his brother was leaning over the 

baby and “told him to ‘get [his] damn kid.’” Id. 

Mr. Nelson testified that on the day of the victim’s death, the Petitioner was 

outside waiting with their older daughter for the bus, and the Petitioner had the telephone.

Id. at *13. Mr. Nelson remained inside with the victim, who suddenly spit up. Id. at *12 

Mr. Nelson suctioned the victim’s mouth and nose and saw her turn pale and then blue. 

Id. Mr. Nelson attempted to perform CPR on the victim, and once the Petitioner came in, 

Mr. Nelson called 911. Id. He testified that the victim’s rib fractures could have been 

caused by CPR. Id. at *14. According to Mr. Nelson, the ambulance took an hour to 

arrive. Id. at *13. Mr. Nelson testified that the Petitioner also accidentally bumped the 
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victim’s head on a doorknob. Id. He denied injuring the victim in any way, and he 

testified that the Petitioner would not have hurt the victim. Id. He claimed never to have 

been alone with the victim. Id. 

The Petitioner also testified at trial, and she denied hurting the victim or seeing 

anyone else hurt the victim. Id. at *19. She confirmed that R.C. knocked her down while 

she was holding the victim, but she could not say whether the victim sustained serious 

injuries in the fall. Id. She likewise testified that she bumped the victim’s head on a 

doorknob but stated it did not leave a mark. Id. The Petitioner recalled seeing Mr. 

Nelson’s brother pick up the crying victim, and she testified that when she asked what 

was wrong with the baby, Mr. Nelson’s brother said he was getting tired of hearing her 

cry. Id. at *20. She acknowledged that the victim cried constantly. Id. 

The Petitioner testified that she was waiting for the school bus with her older 

daughter on the morning of the victim’s death. Id. at *21. The Petitioner said that the 

victim died while the Petitioner was outside, that Mr. Nelson attempted to perform CPR, 

and that she performed CPR on the victim while Mr. Nelson called 911. Id. The 

Petitioner explained that there was a delay in calling 911 because she had to wait with 

their older daughter for the school bus to arrive. Id. 

Mr. William Freeman, an emergency medical technician, testified that the 

ambulance arrived eleven minutes after he received the emergency call and that the 

victim was at that time obviously lifeless. Id. at *1. He stated that the Petitioner was 

hysterical, that Mr. Nelson had to be restrained because he thought emergency personnel 

should have arrived sooner, and that neither the Petitioner nor Mr. Nelson came to the 

ambulance to check on the victim. Id. He testified that the Petitioner and Mr. Nelson 

went to a car with relatives and were smoking and laughing as though nothing had 

happened. Id. The Petitioner and Mr. Nelson denied this. The Petitioner testified that

she did not ask to see the victim because she did not want to interrupt any lifesaving 

measures. Id. at *21. She also testified that she was distraught when the victim died, and 

she denied smoking and laughing with Mr. Nelson. Id. at *19. Mr. Nelson testified that 

he did ask to see the victim in the ambulance, and he denied laughing and smoking after 

the victim’s death. Id. at *14. 

Sheriff Steve Sanders testified that the Petitioner told him that she had placed the 

victim on a mattress on the floor with a bottle and had walked away. Id. at *2. The 

Petitioner told him that the victim was unresponsive when she returned and that Mr. 

Nelson called 911. Id. Sheriff Sanders testified that both the Petitioner and Mr. Nelson 

were “calm.” Id. The Petitioner denied having told Sheriff Sanders that the victim 

stopped breathing on the mattress. Id. at *21. Instead, she reiterated that the victim died 

while the Petitioner was waiting for the bus with her older daughter. Id. at *21.
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After the victim’s death, Mr. Nelson gave a statement to police noting that R.C.

had pushed down the Petitioner while she was holding the victim and that the victim hit 

her head. Id. at *10. He also stated that his brother, the victim’s uncle, was left alone 

with the baby and that the baby started to cry. Id. In her statement to police, the 

Petitioner explained the victim’s injuries by stating that she was knocked down by R.C. 

while holding the victim, that she accidentally bumped the victim’s head on a doorknob, 

that R.C. and his sister were throwing things at the baby, and that she once left the baby 

with Mr. Nelson’s brother while she did laundry. Id. Investigator Joe Pursell testified 

that the Petitioner and Mr. Nelson cried at the hospital on the day of the victim’s death 

but showed no emotion thereafter. Id. 

A medical examiner for Shelby County, Dr. Miguel Laboy, testified about the 

victim’s numerous injuries. The victim had an abrasion on her nose and a bruise under 

her jaw, which he testified was unusual in an infant because it is a protected area. Id. at 

*2. He acknowledged that administering CPR could cause bruising. Id. at *3. Dr. Laboy 

found three hemorrhages under the victim’s skull, and he testified that they were caused 

by older as well as more recent injuries. Id. at *2. He concluded that the hemorrhages 

were from trauma. Id. at *3. He likewise found perioptic hemorrhages and a retinal 

hemorrhage that were the result of trauma. Id. The victim had six fractured ribs on the 

left lateral side, eight on the left posterior side, and five on the right lateral side. Id. He 

stated that these fractures were healing with calluses and that there was a recent refracture 

of one left posterior rib with blood accumulation. Id. The fractures, except for the most 

recent refracture, could have resulted from a single event. *3. The injuries were 

consistent with “squeezing type of inflicted trauma.” Id. at *3. Dr. Laboy did not 

discount the possibility that the multiple rib fractures could have occurred if someone 

holding the victim fell. Id. at *4. The victim was suffering from recent pneumonia. Id. 

Dr. Laboy testified that in his opinion, the victim died of a closed head injury that 

involved new bleeding over an older brain injury. Id. He acknowledged that the victim’s 

internal injuries would not be visible to the Petitioner. Id. at *4. 

Mr. Nelson’s stepmother testified that the Petitioner and Mr. Nelson were both 

crying immediately after the victim’s death and that they were not laughing. Id. at *14. 

She testified that she had taken care of the victim in late April, and the victim slept for 

most of the three-hour visit. Id. at *15. Mr. Nelson’s stepmother had difficulty waking 

the victim to feed her, and the victim began crying continuously and simply would not 

stop. Id. Mr. Nelson’s stepmother felt that the crying was excessive and abnormal. Id. 

Jeremy Booker, a jailhouse informant, testified that he witnessed Mr. Nelson 

speaking with a gray-haired man in a suit and that he heard Mr. Nelson say that he hit, 

slapped, and kicked the victim because she was crying while he wanted to sleep. Id. at 

*11. The man Mr. Nelson was allegedly speaking with was not identified, and Mr. 
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Booker was cross-examined about inconsistent statements he had made regarding the 

timing of Mr. Nelson’s alleged confession. Id. An attorney who did not have gray hair 

testified that he met with Mr. Nelson about unrelated matters around the time of the 

alleged confession and that Mr. Nelson did not say anything about injuring the victim. 

Id. at *12. Mr. Nelson denied making the statements. Id. 

The Petitioner presented the testimony of Dr. Fred Steinberg, a forensic 

psychologist. Dr. Steinberg testified that the Petitioner had an IQ of 53, which indicated 

that she “would have the intellect of a first or second grade child.” Id. at *15. He 

testified that the Petitioner, in her statement to police, gave different answers to how the 

victim was injured because she was either unaware of the reason or she wanted to give 

the interviewer an answer that the interviewer would accept. Id. at *15-16. The 

Petitioner had been diagnosed with psychosis prior to the victim’s death, and she suffered 

hallucinations. Id. at *16-17. He testified that the Petitioner would not be able to 

appreciate consequences and that she would not be the one to make decisions in a 

relationship. Id. at *16.

Dr. Steinberg testified that the Petitioner was nevertheless competent to stand trial

based on the “Evaluation of Competency to Stand Trial – Revised,” which consisted of a 

structured interview. He explained that determining competency is “based upon several 

things, understanding how the court works, and if you’re not understanding it, being able 

to retain it, being educated and retain[ing] it; working with your lawyer; having an 

understanding of the charges against you; and so on and so forth.” Id. at *17. He 

testified that the Petitioner understood the difference between right and wrong. Id. 

The jury convicted both the Petitioner and Mr. Nelson of first degree felony 

murder and of aggravated child abuse. The Petitioner was sentenced to life in prison for 

the murder conviction and to fifteen years for the aggravated child abuse conviction. Id. 

at *1. Due to an untimely notice of appeal, this court reviewed only the sufficiency of the 

evidence on direct appeal. Id. at *22. The Petitioner’s convictions were affirmed. Id. at 

*29. 

Post-Conviction Proceedings

The Petitioner filed a timely petition for post-conviction relief, and she was 

appointed counsel. At the post-conviction hearing, the Petitioner testified that she 

graduated from high school but that all of her classes, save a home economics class, were 

special education classes. She could write and read “a little bit.” She was given 

instructions on caring for the victim prior to the victim’s release from the hospital. The 

Petitioner testified that the victim was diagnosed with intellectual disabilities and other 

medical problems, including a heart condition. At the time of her death, the victim was 
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on prescription antibiotics and taking formula, and she was experiencing a reaction to the 

antibiotics. The Petitioner stated that the victim had a seizure on the night before she 

died. She also testified that the appearance of blood clots in the brain “runs in the family 

on both sides.”

The Petitioner testified that trial counsel did not call her mother as a witness. She 

acknowledged that her mother did not live nearby and could not have testified regarding 

the victim or facts of the case. The Petitioner stated that she had wanted to testify at trial

and that she did not want her trial severed from Mr. Nelson’s trial. She acknowledged 

that trial counsel cross-examined Mr. Booker about Mr. Nelson’s alleged jailhouse 

confession. She testified, however, that she felt trial counsel did not adequately research 

and prepare and that he should have “got down into the case, read by page by page.” She 

testified that trial counsel conveyed plea offers to her but that she was scared to take the 

offers. 

Trial counsel testified that he was the second attorney to represent the Petitioner. 

The Petitioner’s first attorney had retained Dr. Steinberg and another expert witness. 

However, the other expert witness, who has since been “suspended,” “dropped off the 

face of the earth,” and trial counsel’s numerous attempts to contact him failed. Trial 

counsel instead hired a pediatric nurse who spent over twenty hours helping him to 

understand the medical proof. Trial counsel testified that he met with the Petitioner 

several times but that the Petitioner would “get stuck in a loop” and begin to repeat the 

same thought over and over, making a prolonged meeting useless. 

Trial counsel testified that when he tried to discuss the medical proof with the 

Petitioner, she would repeat over and over that she wanted to know what had happened to 

cause the death of her child. Trial counsel attempted to locate an expert pathologist to 

counter Dr. Laboy’s testimony but was unable to do so because Dr. Laboy was affiliated 

with a large medical group. He testified that he wished he “would have done more” to 

counter the medical testimony by securing an expert pathologist. He acknowledged that 

another pathologist might have agreed with Dr. Laboy’s conclusions. Trial counsel 

introduced the victim’s medical records at trial in an effort to imply that her injuries may 

have been perinatal. The Petitioner never told trial counsel that the victim had a seizure 

the night before she died. Trial counsel testified that the Petitioner’s mother could not 

have given testimony regarding the facts of the case and could only have given “social 

context.”

Trial counsel testified that this was a case that caused him to second-guess his 

actions and that at the time of trial, 
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I focused on her competency to stand trial. And what I did not do was ask 

Dr. Steinberg to assist me in evaluating whether she was competent to 

assist me in her defense. I mentioned to [the prosecutor] that we would get 

stuck [i]n these loops. No, I did not have Dr. Steinberg evaluate whether 

she was competent to assist me at trial.

Trial counsel testified that if it had occurred to him, he would have had the Petitioner 

evaluated to determine her capability in assisting in her own defense. He acknowledged 

that Dr. Steinberg found the Petitioner competent to stand trial and that Dr. Steinberg

testified in detail regarding her ability to process and communicate. 

Trial counsel testified that whenever he approached the Petitioner with a plea 

offer, she would again “hit another one of those loops,” repeating over and over that she 

did not want to go to prison. The State extended a three-year plea offer with the 

possibility of alternative sentencing, but trial counsel could not promise the Petitioner she 

would not go to jail, and she consequently refused the offer. 

Trial counsel considered filing a motion to sever the Petitioner’s trial from Mr. 

Nelson’s trial. He testified that he made a strategic decision not to do so because he felt 

the jury would want to hold someone accountable for the victim’s death and he believed 

that the jury was more likely to acquit the Petitioner if they had the option of returning a 

conviction for Mr. Nelson at the same time. 

Trial counsel stated that he tried to counter the testimony that the Petitioner did not 

manifest emotion on the victim’s death. He noted that anyone who had observed the 

Petitioner “would understand that her emotion doesn’t run like you would normally 

expect someone’s emotion” to run and that Dr. Steinberg testified about the Petitioner’s 

affect. 

The post-conviction court found that the Petitioner did not establish either that trial 

counsel was deficient or that any deficiency was prejudicial, and it denied the petition for 

post-conviction relief. 

ANALYSIS

On appeal, the Petitioner asserts that her trial counsel performed deficiently in 

failing to investigate the medical proof or call witnesses, failing to move for a severance, 

failing to properly cross-examine witnesses, and failing to have the Petitioner’s ability to 

assist in her own defense evaluated. The State responds that the Petitioner has not shown 

deficiency and prejudice for any of her claims. 
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A post-conviction petitioner must establish that his conviction or sentence is void 

or voidable due to the abridgment of any constitutional right. T.C.A. § 40-30-103. The 

petitioner bears the burden of proving the allegations of fact in the petition by clear and 

convincing evidence. T.C.A. § 40-30-110(f); Ward v. State, 315 S.W.3d 461, 465 (Tenn. 

2010). “‘Evidence is clear and convincing when there is no serious or substantial doubt 

about the correctness of the conclusions drawn from the evidence.’” Grindstaff v. State, 

297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. 

Crim. App. 1998)). The findings of fact made by a post-conviction court are conclusive 

on appeal unless the evidence preponderates against them. Ward, 315 S.W.3d at 465. 

This court may not substitute its own inferences for those drawn by the post-conviction 

court, and questions concerning the credibility of witnesses, the weight and value of the 

evidence, and the factual issues raised by the evidence are resolved by the postconviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). A claim of 

ineffective assistance of counsel raises a mixed question of law and fact which this court 

reviews de novo. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). The trial court’s 

conclusions of law are reviewed under a purely de novo standard with no presumption of 

correctness. Id. 

Both the Sixth Amendment to the United States Constitution and article I, section 

9 of the Tennessee Constitution guarantee the accused the right to counsel. This right has 

been defined as the right to the reasonably effective assistance of counsel, or assistance 

“‘within the range of competence demanded of attorneys in criminal cases.’” Vaughn v. 

State, 202 S.W.3d 106, 116 (Tenn. 2006) (quoting State v. Burns, 6 S.W.3d 453, 461 

(Tenn. 1999)). The overall standard of effectiveness is “whether counsel’s conduct so 

undermined the proper functioning of the adversarial process that the trial cannot be 

relied on as having produced a just result.” Id. (quoting Strickland v. Washington, 466 

U.S. 668, 686 (1984)).

To show that relief is warranted on a claim of ineffective assistance of counsel, the 

petitioner must establish both that counsel’s performance was deficient and that the 

deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007). 

Deficiency requires showing that counsel’s errors were so serious “that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that 

counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008). 

Courts must make every effort “‘to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the 

conduct from counsel’s perspective at the time.’” Felts v. State, 354 S.W.3d 266, 277 

(Tenn. 2011) (quoting Strickland, 466 U.S. at 689). “‘[A] reviewing court must be highly 

deferential and should indulge a strong presumption that counsel’s conduct falls within 
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the wide range of reasonable professional assistance.’” Id. (quoting Burns, 6 S.W.3d 453

at 462. In evaluating counsel’s performance, strategic choices “‘made after thorough 

investigation of law and facts relevant to plausible options are virtually unchallengeable; 

and strategic choices made after less than complete investigation are reasonable precisely 

to the extent that reasonable professional judgments support the limitations on 

investigation.’” Id. (quoting Strickland, 466 U.S. at 690-91). The reviewing court must 

begin with “the strong presumption that counsel provided adequate assistance and used 

reasonable professional judgment to make all strategic and tactical significant decisions.”

Davidson v. State, 453 S.W.3d 386, 393 (Tenn. 2014).

In determining prejudice, the post-conviction court must decide whether there is a 

reasonable probability that, absent the errors, the result of the proceeding would have 

been different. Grindstaff, 297 S.W.3d at 216. “‘A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.’” Honeycutt, 54 S.W.3d 

at 768 (quoting Strickland, 466 U.S. at 694). “That is, the Petitioner must establish that 

his counsel’s deficient performance was of such a degree that it deprived him of a fair 

trial and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316. 

Because both prongs must be established for relief, a court need not address both if the 

defendant has failed to prove either deficiency or prejudice. Goad v. State, 938 S.W.2d 

363, 370 (Tenn. 1996).

A. Failure to Investigate and to Call Witnesses

The Petitioner contends that trial counsel did not adequately investigate her case. 

She notes in particular that an expert pathologist might have disputed the medical 

evidence at trial. The Petitioner cites to trial counsel’s own testimony that he felt he 

should have secured an expert pathologist to attempt to dispute the medical proof. The 

Petitioner also testified that trial counsel did not call her mother to testify. 

Trial counsel testified that he spent over twenty hours reviewing the medical proof

with a pediatric nurse, that he presented the expert testimony of Dr. Steinberg, and that he 

attempted to locate a pathologist to testify for the Petitioner but was stymied by Dr. 

Laboy’s affiliation with a large medical group. He testified that in retrospect, he should 

have tried harder to find his own expert pathologist. 

When a claim of ineffective assistance of counsel is premised on counsel’s failure 

to interview or call witnesses, the witnesses must be presented at the post-conviction 

hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “‘As a general 

rule, this is the only way the petitioner can establish that ... the failure to have a known 

witness present or call the witness to the stand resulted in the denial of critical evidence 

which inured to the prejudice of the petitioner.’” Pylant, 263 S.W.3d at 869 (quoting 
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Black, 794 S.W.2d at 757). This is because the court cannot speculate as to what a 

witness’s testimony might have been. Black, 794 S.W.2d at 757. Presenting the witness 

allows the post-conviction court to determine whether that witness’s testimony would 

have been credible, material, and admissible. Pylant, 263 S.W.3d at 869-70. 

Here, the Petitioner did not present the testimony of either her mother or an expert

pathologist who disputed the medical proof at trial. Trial counsel testified that he 

attempted to secure a pathologist but that he was unable to do so because Dr. Laboy was 

affiliated with a large medical group. He put considerable effort into reviewing and 

understanding the medical proof. We conclude that the Petitioner has not shown 

deficiency or prejudice. 

B. Failure to Move for Severance

The Petitioner asserts that trial counsel was deficient in failing to move for a 

severance. At the post-conviction hearing, trial counsel testified that he considered 

moving for a severance but thought it would be in the Petitioner’s best interest to be tried 

together with Mr. Nelson. Trial counsel noted that the jury would want to hold someone 

accountable for the victim’s death, and he felt that the jury would be more likely to blame 

Mr. Nelson than to blame the Petitioner if the two were tried together. Accordingly, the 

decision not to move for a severance was a strategic decision, and strategic decisions, 

when made after a thorough investigation, are “virtually unchallengeable.” Felts, 354 

S.W.3d at 277. The Petitioner has furthermore failed to present any argument that a 

motion to sever would have been granted. See Jesse Wade Glover v. State, No. W2010-

01679-CCA-R3-PC, 2012 WL 12932004, at *4 (Tenn. Crim. App. June 6, 2012)

(denying relief for alleged deficiency in failing to ask for severance when the petitioner 

did “not offer any evidence to support that a severance in this case would have been 

proper”); Black, 794 S.W.2d at 758 (denying post-conviction relief for failure to file 

severance when there existed “neither factual nor legal basis for the granting of a 

severance”). She is not entitled to relief. 

C. Inadequate Cross-Examination

The Petitioner asserts that trial counsel was deficient in insufficiently disputing 

testimony that she showed no emotion on her daughter’s death. While she does not 

identify the exact testimony at issue, Mr. Freeman testified that the Petitioner was 

hysterical at first but later seemed unconcerned about the victim’s death, Sheriff Sanders 

testified that the Nelsons were “calm,” and Investigator Pursell testified that the 

Petitioner cried at the hospital but showed no emotion thereafter. The Petitioner, Mr. 

Nelson, and Mr. Nelson’s stepmother all testified that the Petitioner was crying and upset 

and not laughing at the time of the victim’s death. Trial counsel cross-examined Mr. 
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Freeman regarding his statement that the Petitioner was “hysterical,” and he confirmed 

that she was “very agitated.” The Petitioner does not specify how trial counsel could 

have further discredited the testimony regarding her emotional state. Trial counsel 

testified that he did not believe the testimony was particularly important because anyone 

observing the Petitioner would conclude that her emotional responses might be unusual 

due to her mental limitations. Trial counsel presented proof tending to counter the 

prosecution’s evidence that the Petitioner was unemotional, and we conclude that the 

Petitioner has not established either deficiency or prejudice. See Tony Young v. State, 

No. W2007-00328-CCA-R3-PC, 2009 WL 5083498, at *6 (Tenn. Crim. App. Dec. 28, 

2009) (holding that trial counsel’s performance in cross-examining victims was not 

deficient when trial counsel questioned the victims and presented other witnesses to rebut 

their testimony).

D. Failure to Evaluate the Petitioner to Determine her Ability to Assist in her 

Defense

The Petitioner contends that trial counsel was deficient in not having her ability to 

assist in her defense evaluated. Trial counsel testified that, in hindsight, he felt he should 

have asked Dr. Steinberg to evaluate the Petitioner’s ability to assist in her own defense. 

He noted that the Petitioner refused a three-year plea offer which might have included 

alternative sentencing. He felt that the Petitioner’s refusal was not logical but that she 

was “stuck in a loop” where the only thought in her head was that she wanted to avoid 

prison entirely. Evidence at trial established that the Petitioner had an IQ of 53 and 

functioned at the level of a first or second grade child. 

Under the Fourteenth Amendment to the United States Constitution and article I,

section 8 of the Tennessee Constitution, a person who is mentally incompetent may not 

be put on trial. State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000). The standard for 

determining competency to stand trial is whether the accused has “the capacity to 

understand the nature and object of the proceedings against him, to consult with counsel 

and to assist in preparing his defense.” Id. (quoting State v. Black, 815 S.W.2d 166, 174 

(Tenn. 1991)). The defendant bears the burden of establishing incompetency by a 

preponderance of the evidence. State v. Reid, 164 S.W.3d 286, 307 (Tenn. 2005). 

At trial, Dr. Steinberg testified that he evaluated the Petitioner for competency and 

that he found her competent to stand trial. He explained that the evaluation was based in 

part on the patient’s ability to “work[] with [her] lawyer.” Dr. Steinberg concluded that 

the Petitioner was “able to do that” based on a standard competency test which utilized a 

structured interview. The post-conviction court found that the issue of the Petitioner’s 

ability to assist in her defense was “brought up at trial and a doctor testified that she was 

able to stand trial.”
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While trial counsel’s testimony supports the conclusion that the Petitioner’s ability 

to assist in her own defense was impaired, the question presented in this post-conviction 

case is whether trial counsel performed deficiently in failing to obtain further 

psychological testing of the victim. The record as a whole establishes that Dr. Steinberg 

did in fact consider the Petitioner’s ability to work with trial counsel and that in Dr. 

Steinberg’s expert opinion, she met the medical criteria for competency, including the 

ability to consult with counsel and assist in her defense. See Blackstock, 19 S.W.3d at

205-06 (concluding that the defendant, who had an IQ of 55, was competent to stand 

trial). Furthermore, without expert testimony showing that the Petitioner was, in fact, not 

competent to assist with her own defense, the Petitioner cannot establish prejudice. 

Accordingly, we affirm the denial of post-conviction relief. 

CONCLUSION

Based on the foregoing, the judgment of the post-conviction court is affirmed. 

_________________________________

JOHN EVERETT WILLIAMS, JUDGE