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
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., and C AMILLE R. M CM ULLEN, 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 includes social 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 prevent secondary 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.1 The Petitioner claimed that this information should have been made known
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.
1
Articles attached to the Petitioner’s brief indicate that a thirteen-year-old girl alleged that the
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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