Pewitte v. Washburn, 122120 TNMDC, 3:20-cv-00010

Docket Nº3:20-cv-00010
Case DateDecember 21, 2020
CourtUnited States District Courts, 6th Circuit, Middle District of Tennessee




No. 3:20-cv-00010

United States District Court, M.D. Tennessee, Nashville Division

December 21, 2020



Antonio Pewitte, a convicted prisoner in state custody, filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254 and paid the filing fee. (Doc. Nos. 1, 4.) The court will deny the petition for the reasons explained below.


A Davidson County jury convicted the petitioner in 2015 of one count of aggravated child neglect resulting in serious bodily injury. (Doc. No. 10-1 at 7, 82.) He had also been charged with three other counts of which he was acquitted-one count of aggravated child abuse resulting in serious bodily injury, one count of aggravated child abuse by use of a dangerous instrumentality, and one count of aggravated child neglect by use of a dangerous instrumentality-all as alternative theories of criminality for scalding his girlfriend's six-year-old daughter's hands in hot water. (Doc. No. 10-13 at 2.)

At the time of the incident, the petitioner had been dating the victim's mother for almost three years and lived with her, the victim, her son M.O., and the petitioner's son. (Id.) The Tennessee Court of Criminal Appeals summarized the evidence at trial: On the evening of December 1, 2013, Mother was at work, and Defendant was watching her children. Before dinner, N.C. went into the bathroom next to the kitchen and began washing her hands with cold water. Defendant and the other children were at the kitchen table waiting on N.C. to finish washing her hands so that they could begin eating together. Defendant joined N.C. in the bathroom and turned the faucet handle to hot water. Defendant then “grabbed” her wrists and put her hands under the hot water so that the water ran over the back of her hands and thumbs. N.C. testified that the hot water was “painful” and that she cried when she felt it. N.C. said that Defendant did not apply soap to her hands or rub her hands together while her hands were under the water. According to N.C., Defendant also “tried to put [her] face in the water.” N.C. thought that Defendant changed the water temperature because she was “taking too long, ” and she thought he was “angry.” N.C. also testified that, prior to the incident, Defendant believed that N.C. was “messing with nail polish, ” so he punished her by making her “stand in the corner with one leg up and one leg down” while raising both of her hands to her head. N.C. thought that Defendant put her hands under the hot water on purpose and that it was not an accident.

Afterward, Defendant told N.C. to go sit down at the kitchen table, and she complied. During dinner, N.C. 's hands hurt and made it difficult for her to use her fork. Throughout the night, N.C. had trouble sleeping because her hands hurt.

M.O., who was twelve years old at the time of trial, testified that he was at the kitchen table and heard N.C. scream after Defendant went into the bathroom with her. M.O. saw that N.C. 's hands were red, but he did not recall Defendant doing anything to help treat N.C. 's hands. M.O. also heard N.C. “moaning” before she went to bed.

While Mother was at work, she talked with Defendant on the phone around half a dozen times. He told her that N.C. was playing with her nail polish and said that he was going to let Mother “handle it” when she got home. According to Mother, Defendant sounded “angry.” On one of the phone calls, Defendant made N.C. tell Mother that she was in trouble because she “lied” about playing with the nail polish. Mother testified that she did not believe her daughter lied about the nail polish because N.C. was crying on the phone. Although they spoke on the phone numerous times, Defendant never called Mother to tell her that N.C. 's hands were burned, and he did not mention the incident to Mother when she returned home from work. Mother's shift ended at 11 p.m. When she got home, she fell asleep on the couch in the living room.

The following morning, N.C. awakened Mother and said that her hands hurt. Mother observed that there were blisters on the front and back of N.C. 's hands. The blisters covered “most” of her hands. Mother was “shocked” and “worried.” Mother woke up Defendant and asked him what happened.

Given the nature of the injuries, Mother thought that N.C. needed to go to the hospital, but Defendant disagreed. Defendant told Mother that she was “stupid” and said that N.C. “didn't need to go to no f***ing hospital.” Then, Defendant soaked N.C. 's hands in rubbing alcohol and tried to “pop” the blisters with a safety pin. Mother went to the store and bought gauze wrap and Neosporin cream. She used both to treat N.C. 's hands.

Mother called her mother, Carla Agins, and told her about what happened. After learning that N.C. 's hands were burned, Ms. Agins called 911 and the hotline for the Department of Children's Services. According to Ms. Agins, Mother seemed scared because she was whispering on the phone.

Detective Jeffrey Gibson of the Nashville Police Department went to the house and inspected the bathroom where the incident occurred. When Detective Gibson arrived, Defendant was cooperative and seemed “visibly upset.” The sink's faucet had a single lever which turned back and forth horizontally to change the water temperature. Detective Gibson turned on the hot water as high as it would go and then he used a digital thermometer to check the temperature of the water over a period of about two minutes. The temperature of the water fluctuated, but the highest reading was 141.6 degrees Fahrenheit, and the most consistent temperature reading was around 131.6 degrees Fahrenheit. When Detective Gibson checked the water temperature with an analog thermometer, it reached almost 130 degrees Fahrenheit. While the water was running, steam would come from the water intermittently.

After checking the hot water heater, Detective Gibson discovered that the temperature control dial was on the setting just below the hottest. The hot water heater was located next to the bathroom, so the water would not have had to travel far before reaching the bathroom faucet. Mother testified that she had not adjusted the hot water heater temperature settings. She was not aware that anyone had previously been burned by the hot water in their home. The house in which they lived was government-owned housing, so the tenants did not handle maintenance issues.

An ambulance took N.C. to the hospital, where she remained for six days, during which she received aqua therapy and had to perform exercises “to keep flexibility in her hands.” N.C. stayed on pain medication throughout the hospitalization. Mother had to change N.C. 's bandages twice a day after N.C. was discharged, and N.C. had to continue doing flexibility exercises for two months.

Carrie Donnell was a nurse practitioner at Vanderbilt University Medical Center who evaluated N.C. in the emergency department on the day after the incident. The trial court certified her as an expert in child abuse pediatrics without objection. Ms. Donnell described N.C. 's injuries as a mix of superficial thickness burns and partial thickness burns located on “the palm and the back of her hand and then extended from her wrist down to her fingers” on each hand. Ms. Donnell explained:

[B]urns are described ... on a continuum being partial thickness to full thickness burns. And within partial thickness, you can have superficial and deep partial thickness burns. So, if you think about a superficial burn, it would be like a sunburn, redness to the skin, but no loss of skin. And then, as the burn progresses and gets ... deeper, you will have blistering and loss of skin. In a full thickness burn, [it] would enter into subcutaneous tissue and even bone.

The majority of N.C. 's burns were partial thickness burns, including deep partial thickness burns on both hands. Ms. Donnell explained that “superficial and partial thickness burns are actually more painful than full thickness burns ... because the nerve endings are exposed but not yet killed off, ... and the full thickness burns are so deep that the nerve endings are just completely [gone], ... so you don't actually feel that sensation anymore.” Because N.C. 's burns were of the former type, they required “ongoing pain management” until they healed.

After N.C. sustained the injuries, “her hands would have been obviously very red. While they might not have been blistered immediately upon burn-that would have developed over some time-but it would have been clear to any prudent caregiver that she had been injured.” Ms. Donnell explained that immediate medical attention is “very important” for a child with such injuries in order to reduce the risk of developing “difficulty in flexing that extremity or body part.” Ms. Donnell testified that popping the blisters and applying burn ointment was not “an appropriate form of medical intervention” for N.C. 's injuries because opening a wound increases the risk of infection. N.C. 's injuries caused loss of pigmentation to her skin and also reduced the range of motion in her hands.

Ms. Donnell testified that the burns on N.C. 's hands were consistent with both hands having been placed “perpendicular to the floor” with the thumbs upwards underneath the hot water. According to Ms. Donnell, a child can comfortably wash in hot water with a temperature of about 101 degrees, and burns can begin forming at 113 degrees with prolonged exposure. A child like N.C. would be expected to cry out in pain and withdraw from 113-degree water. Accordingly, N.C. 's injuries were not...

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