State v. Mathis

• Decision Date: 26 September 2012
• Docket Number: No. M2009-00123-CCA-R3-CD,M2009-00123-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. SHERRI MATHIS
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. SHERRI MATHIS

No. M2009-00123-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

May 8, 2012 Session

Filed September 26, 2012

Appeal from the Circuit Court for Warren County

No. F-10086

Larry B. Stanley, Judge

The defendant, Sherri Mathis, appeals her Warren County Circuit Court jury convictions of two counts of felony murder, see T.C.A. § 39-13-202(a)(2) (2006); two counts of aggravated child abuse of a child six years of age or less, see id. § 39-15-402(a)(1), (b); two counts of aggravated child neglect of a child six years of age or less, see id.; one count of child abuse of a child six years of age or less, see id. §39-15-401(a); and two counts of aggravated child abuse, see id. § 39-15-402(a)(1). At sentencing, the trial court imposed an effective sentence of life plus 32 years' incarceration. In addition to challenging the sufficiency of the evidence on appeal, the defendant claims that (1) the trial court erroneously denied her motion for continuance, (2) the trial court erroneously admitted photographs of the deceased victim, (3) the trial court erroneously denied her motion to dismiss the indictment based upon a fatal variance, (4) the trial court erroneously denied a motion for mistrial, (5) the trial court erroneously allowed the State to call the defendant's civil attorney as a witness knowing that the attorney would claim privilege, (6) the trial court erroneously limited testimony of defendant's expert witness, (7) the State committed prosecutorial misconduct during opening statements and closing arguments, and (8) the trial court imposed an excessive sentence. Additionally, the defendant contends that the trial court erroneously dismissed her petition for writ of error coram nobis and erroneously denied her the right to depose Doctor Bruce Levy concerning the claims contained in the coram nobis petition. We discern that the trial court failed to merge certain counts and failed to enter judgments as corrected at the hearing on the motion for new trial. We further conclude that the State failed to establish serious bodily injury with respect to the defendant's convictions of aggravated child abuse in Counts Eight and Nine and direct the trial court on remand to enter judgments reflecting convictions of child abuse and three-year sentences. Accordingly, the case is remanded for the trial court to enter modified judgments in Counts Eight and Nine, judgments effectuating proper merger, and judgments reflecting modified sentences, and we affirm the judgments in all other respects.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed as Modified;

Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS and JEFFREY S. BIVINS, JJ., joined.

C. Brent Keeton (on appeal), Manchester, Tennessee; B.F. Jack Lowery, Lebanon, Tennessee; and Michael D. Galligan and John Partin (at trial), McMinnville, Tennessee, for the appellant, Sherri Mathis.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Brian Holmgren, District Attorney General Pro Tempore; and Kristen Menke, Assistant District Attorney General Pro Tempore, for the appellee, State of Tennessee.

OPINION

The events giving rise to the defendant's convictions surround the death of six-year-old C.D. and the ensuing investigation concerning the defendant's treatment and care of C.D. and her brothers, ten-year-old R.C. and nine-year-old D.H, while the defendant had custody of the three children from October 2001 until July 2004.¹

On June 26, 2004, Donald Hillis, a certified first responder, responded to the call of a "child not breathing" at the defendant's home. Because the defendant lived across the street, Mr. Hillis arrived at the defendant's home in "less than two minutes" after receiving the call. As he walked into the defendant's home, he saw "a girl laying in the floor" of the living room while the defendant performed cardiopulmonary resuscitation ("CPR") on the girl. He testified that the victim "was definitely not breathing . . . . She was pale. She was cool." The defendant told Mr. Hillis that the victim had been sick, and he confirmed this report after seeing some "white paste" on the victim indicative of the victim's having vomited or aspirated. He noted that the victim's clothing and hair were wet, and the defendant told him that she had placed the victim in the bathtub in an attempt to revive the victim. When shown photographs of the victim at trial, Mr. Hillis testified that he had seen none of the bruises on the fully-clothed victim when he treated her. He also stated that none of the resuscitative measures undertaken by himself or other medical personnel could have caused the bruises. Mr. Hillis said that the defendant "was very distraught and [that] she was doing all that she could" to help the victim. Mr. Hillis assisted the defendant in herresuscitative efforts and carried the victim to the ambulance when it arrived a few minutes later.

Rachel Miller, a paramedic with the Warren County Emergency Medical Service, arrived at the defendant's home within seven minutes of receiving the call. As the ambulance entered the driveway, Ms. Miller saw Mr. Hillis "carrying a child [who] appeared to be limp." After placing the victim on the stretcher, Ms. Miller and her partner, Preston Denning, continued to perform CPR on the victim while Mr. Hillis drove the ambulance to River Park Hospital. While en route, Ms. Miller attempted to place cardiac monitoring pads on the victim's chest, but the victim was wet and the pads would not adhere to her skin. After drying off the victim and successfully attaching the pads, Ms. Miller "confirmed that [the victim] did not have any kind of electrical activity in her heart." She testified at trial that "at that point[,] the only thing we can do is CPR. We can't defribrillate." Ms. Miller and Mr. Denning attempted to use a "bag-valve-mask" on the victim but had difficulty because water kept coming out of the victim's mouth. Ms. Miller's efforts to intubate the victim were also unsuccessful because "the first thing was when I opened her airway I noticed water was starting to fill her oral cavity again and when I looked a little closer, her oral cavity was full of water and unfortunately I just couldn't see through it to visualize the vocal cords." Ms. Miller recalled that the victim was "very cold to the touch."

Ms. Miller recalled that her partner pointed out bruises on the left side of the victim's face. She also noticed bruising on the victim's abdomen when she removed the victim's shirt to place the cardiac pads. She recalled, "I knew it was not right[,] but I really didn't have time to process it right then. My priority was continuing resuscitation on her[,] but [the bruising] wasn't right." Ms. Miller did not notice any vomit in the victim's mouth or on her clothing. When shown photographs of the bruises and scratches on the victim's body, Ms. Miller opined that none of their resuscitative measures could have caused the injuries. The ambulance arrived at the hospital within six minutes.

Doctor James Parker treated the victim at River Park Hospital on June 26, 2004. The victim arrived at 4:05 p.m. with "no pulse[,] and [she] was not breathing." Doctor Parker recalled that the victim was "very cold" with wet hair and clothing. He testified that the victim appeared "smaller than [he] expected her to be for her age" and that "several markings on her body [] looked like some injuries of various ages." He said that these abrasions and bruises caused him concern "right off the bat." He noted injuries to the victim's lips and gums and "quite a bit of water" in the victim's mouth. He did not notice any vomit. Likewise, he did not notice any crackers in the victim's mouth or airway as a possible culprit of the choking. He opined that placing the victim in the bathtub in an effort to revive her after a choking episode was not an appropriate medical intervention.

Doctor Parker attempted to revive the victim for 30 minutes, during which time he ventilated her via a vent bag, performed chest compressions, administered medications, drew blood from the victim's femoral artery, and performed X-rays. Noting no electrical activity in the victim's heart throughout this process, Doctor Parker determined that the victim had died at the scene before the paramedics arrived. He pronounced the victim dead at 4:30 p.m. When he approached the defendant to tell her that the victim had died, he recalled that

it was kind of an unusual situation. When we went out to talk with her to tell her that [the victim] had died, she immediately began to tell me about the injuries [the victim] had on her body, [and I] was kind of struck by that as unusual. She was telling me about the fact that [the victim] would throw herself up against the wall, and that was accounting for all the different injuries that she had . . . . I thought it was an unusual circumstance to give me that information when I was just telling her about the patient dying. I had the nurse with me. Later we commented about how unusual a situation that was.

When Doctor Parker asked the defendant why she placed the victim in the bathtub, he "didn't get a direct answer about that. So, [he] perceived that she was upset and more like fearful and in a panic." He testified at trial that the defendant never appeared "inconsolable" as is typical when a child dies. He recalled that the defendant never cried or expressed any grief over the victim's death.

Doctor Parker testified that toxicology reports from the victim's blood revealed an elevated level of the metabolite from imipramine. He opined that none of the victim's injuries were the result of resuscitative measures or self-injurious behavior. Based upon his observation of injuries of different ages and patterns, as well as the victim's failure to thrive, Doctor Parker suspected the victim had suffered...