State v. Cullen
| Decision Date | 15 April 2022 |
| Docket Number | S-21-447. |
| Citation | 311 Neb. 383,972 N.W.2d 391 |
| Parties | STATE of Nebraska, appellee, v. Sarah A. CULLEN, appellant. |
| Court | Nebraska Supreme Court |
Gregory A. Pivovar, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Sarah A. Cullen appeals the order of the district court for Douglas County which denied her motion for postconviction relief. Cullen, who is serving a sentence of imprisonment for 70 years to life for a conviction for intentional child abuse resulting in death, set forth claims of ineffective assistance of both trial and appellate counsel. The district court determined that all of Cullen's claims were insufficiently pled, and it therefore denied her motion for postconviction relief without an evidentiary hearing. We affirm.
Cullen was convicted of intentional child abuse resulting in death in connection with the death of an infant who was in her care. The district court sentenced her to imprisonment for 70 years to life, and her conviction and sentence were affirmed on direct appeal. State v. Cullen , 292 Neb. 30, 870 N.W.2d 784 (2015).
Further details may be found in the opinion on direct appeal, but the evidence generally showed as follows: In January 2013, Christopher (Chris) Bell and Ashley Bell hired Cullen to work temporarily in their home as a nanny for their son, Cash Christopher Bell, who was born in October 2012. On the morning of February 28, 2013, Cullen was caring for Cash while the Bells were at work. Both Chris and Ashley testified that it had been a typical morning before they went to work and that Cash was acting normally. Cullen arrived at the Bells’ house at 7:15 a.m. Chris had already left for work, and Ashley left for work at around 7:40 a.m.
Around 9:19 a.m., Chris returned home to retrieve a check-book. Chris looked in on Cash who was lying face down. Chris rolled Cash over; Cash did not open his eyes, but he took a breath and Chris believed that he was sleeping. Cullen was in a nearby bathroom while Chris was in the house. Chris estimated he was in the house for less than a minute, and as he was getting into his car, Cullen came to the door with Cash in her arms.
At around 10:15 a.m., Cullen called her boyfriend and told him that Cash was not breathing and that his feet were blue. Her boyfriend came to the Bells’ house. Cash was not responsive but was breathing. Cullen's boyfriend took Cash and Cullen to a hospital. When they arrived at the hospital's emergency room, Cullen stated that she found Cash "sleeping on his belly and he doesn't normally sleep like that."
Cullen called Ashley shortly after calling her boyfriend. Cullen told Ashley that she was taking Cash to the hospital because he had just woken up from a nap and was not breathing right. The Bells arrived at the emergency room. Ashley questioned Cullen about what had happened that morning, and Cullen stated only that Cash woke up from his nap in that condition.
Cash was eventually transported to a pediatric hospital due to the extent of his injuries. Cash's neurological condition rapidly deteriorated over the following days. He exhibited a lack of responsiveness and frequent seizures that could be controlled only through high doses of medication. Doctors determined that Cash would not have any significant neurologic recovery, and based on the doctors’ long-term prognosis that Cash would never be able to see, hear, or walk or be without a feeding tube and a ventilator, the Bells decided to take Cash off life support on March 5, 2013. He died that day.
Law enforcement officers interviewed Cullen on February 28 and March 1, 2013. During the February 28 interview, Cullen told four versions of what had occurred with Cash that morning. She first stated that Cash had been acting normally but that after he woke from a nap, his breathing was not normal. At that time, Cullen denied that Cash had fallen or had an accident that morning. After the interviewer informed Cullen that Cash's skull was fractured
and that his head had to have hit something or something had to have hit his head, Cullen stated that when she was walking out the back door with Cash, she may have accidentally hit his head on the door. The interviewer later informed Cullen that a pediatrician had said that Cash's injuries could not have been caused by hitting his head on a door. Cullen initially denied that anything else had happened, but she later stated that Cash had fallen out of his swing at about 8:15 a.m. and that he whimpered but then fell asleep. The interviewer again consulted with a pediatrician and informed Cullen that Cash's injuries could not have been caused by a short fall from the swing and that instead, his injuries were consistent with shaking or being thrown down hard. Cullen began crying and admitted that she had lied. She stated that Cash had fallen out of the swing the day before, but that at about 8:15 a.m. on February 28, she had slipped on the stairs while carrying Cash and he had fallen onto the tile floor below. She denied shaking Cash. Cullen generally maintained this fourth version of events in a written statement and during an interview on March 1.
Several medical experts testified about the extent of Cash's injuries and their possible causes. Evidence indicated significant injuries, including a large hematoma
and a smaller bruise on the back of the head, two skull fractures, hemorrhages in the surface of the brain, injury to the brain itself, and multiple retinal hemorrhages. Doctors testified that the brain injuries affected Cash's entire brain and that 90 percent of his brain was permanently damaged. The medical experts agreed that Cash's injuries were consistent with nonaccidental trauma caused by shaking or impacts to the head or both. None of the experts could pinpoint an exact date and time of injury, but they estimated that the brain and eye injuries occurred within 0 to 2 days of February 28, 2013. Based on medical evidence and statements given by the Bells and Cullen, two medical experts opined that Cash's brain injury occurred sometime after Ashley left for work on February 28. They testified that children with Cash's type of brain injury are immediately unwell and that symptoms would manifest fairly quickly and would be noticeable. Several medical experts testified that Cullen's versions of events could not have accounted for all of Cash's injuries.
Cullen appealed her conviction and sentence to this court. Cullen had new counsel on direct appeal, and in addition to other assignments of error, she set forth claims of ineffective assistance of trial counsel. She claimed that trial counsel was ineffective in four respects, and we determined that three of the claims were without merit. The fourth claim was that trial counsel was ineffective for failing to investigate and call a medical expert to testify on her behalf. We concluded that the record on direct appeal was inadequate to address this claim. Having rejected Cullen's other assignments of error, we affirmed her conviction and sentence. State v. Cullen , 292 Neb. 30, 870 N.W.2d 784 (2015).
On November 16, 2016, Cullen filed a verified motion for postconviction relief in which she set forth four claims of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. We quote these allegations later in our opinion. Before setting forth her specific claims of ineffective assistance of counsel, Cullen made certain allegations in her motion. She generally alleged as follows: After being charged in this case, Cullen was originally represented by counsel retained by her father. She asserted that her original counsel "performed valuable service" but that he eventually withdrew as counsel upon the advice of a trial consultant. Cullen's original counsel had contacted a trial consultant from Ohio with whom he had a professional relationship. He asked the trial consultant, who had 25 years of experience assisting in the defense of persons charged with child abuse, to evaluate Cullen's case. After meeting with Cullen and reviewing evidence in this case, the trial consultant determined that Cullen's case was "fully defensible." The trial consultant made suggestions of how Cullen's case could be defended, and she recommended "several experts" who could provide testimony in Cullen's defense. In her motion for postconviction relief, Cullen included a list of the names of several experts who had been recommended by the trial consultant. The trial consultant further advised that Cullen's original counsel should withdraw, because Cullen's father could not afford to hire the expert witnesses, and that if original counsel withdrew, Cullen would be eligible to be represented by the public defender's office, which would have the budget to hire the experts.
After her original counsel withdrew, Cullen was represented at trial by public defenders. Cullen alleged that her original counsel provided the public defenders with a confidential memorandum setting forth various issues and his suggestions of how Cullen's defense should be handled, including potential witnesses and theories of defense. Those theories of defense involved the possibility that Cash's injuries occurred prior to the time Cullen was caring for him on February 28, 2013, and the possibility that one of Cash's parents caused the injuries. The memorandum also set forth suggestions of the trial consultant, including the names of experts recommended by the trial consultant.
In support of her claims of ineffective assistance of trial counsel, Cullen generally alleged that trial counsel failed to follow up on the suggestions and recommendations of her original counsel and the trial consultant and that trial counsel failed to consult with her regarding potential defenses and witnesses and her right to testify at trial. In support of...
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