        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               November 18, 2014 Session

            MISTY JANE BRUNELLE v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Greene County
                     No. 11CR323      John F. Dugger, Jr., Judge




            No. E2014-00292-CCA-R3-ECN          - Filed December 26, 2014



Petitioner, Misty Jane Brunelle, was convicted of three counts of aggravated child abuse in
relation to broken bones sustained by her infant daughter. Her convictions and sentences
were affirmed on appeal. State v. Misty Brunelle, E2006-00467-CCA-R3-CD, 2007 WL
2026616 (Tenn. Crim. App. July 13, 2007), perm. app. denied (Tenn. Oct. 22, 2007)
(“Brunelle I”). Petitioner then filed a post-conviction petition, which was denied. This Court
affirmed the denial of the post-conviction petition on the basis of ineffective assistance of
counsel, but reversed the lower court’s determination that no newly discovered evidence
existed. Misty Jane Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545
(Tenn. Crim. App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (“Brunelle II”).
Petitioner then filed a petition for writ of error coram nobis, claiming that newly discovered
evidence existed which may have resulted in a different outcome had it been presented at
trial. After a hearing, the coram nobis court denied the petition. Based upon a thorough
review of the law, record, and arguments in this case, we hold that the coram nobis court did
not abuse its discretion in denying the petition. Therefore, we affirm the decision of the
coram nobis court.

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

T IMOTHY L. E ASTER, J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Brent Hensley, Greeneville, Tennessee, for the appellant, Misty Jane Brunelle.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Dan
Armstrong, District Attorney General; and Cecil C. Mills, Jr., Assistant District Attorney
General, for the appellant, State of Tennessee.



                                         OPINION

                            Factual and Procedural Background

       On February 2, 2006, Petitioner was convicted by a Greene County jury of three
counts of aggravated child abuse in relation to broken bones sustained by her infant daughter
(“the victim”) in 2003. Petitioner received a total effective sentence of twenty-five years’
incarceration. On direct appeal, this Court affirmed the convictions and sentences. Brunelle
I, 2007 WL 2026616, at *18. The Tennessee Supreme Court denied Petitioner’s application
for permission to appeal.

        On October 17, 2008, Petitioner filed a pro se petition for post-conviction relief. The
post-conviction court appointed counsel, but no amended petition was filed. Petitioner
claimed that she received ineffective assistance of counsel and that newly discovered
evidence existed in her case, specifically a letter from the University of Washington that a
genetic test could not definitively exclude a diagnosis of osteogenesis imperfecta, otherwise
known as “brittle bone disease.” After a hearing, the post-conviction court denied relief,
finding that counsel had not been ineffective and that no newly discovered evidence existed.
This Court affirmed the post-conviction court’s ruling in part and reversed it in part.
Brunelle II, 2011 WL 2436545, at *1. This Court reversed the trial court’s ruling that the
letter did not constitute newly discovered evidence, but held that such a claim should have
been raised in a petition for writ of error coram nobis. Id. at *10.

       On August 15, 2011, Petitioner filed a petition for writ of error coram nobis, claiming
that newly discovered evidence existed which may have resulted in a different judgment had
it been presented at trial. The newly discovered evidence is a letter from the University of
Washington’s School of Medicine which states that several tests were performed on a skin
biopsy of the victim in 2003 to determine whether she had osteogenesis imperfecta (OI).
According to the letter:

       Typically in individuals with OI type I[,] the amount of type I procallagen is
       reduced by half. The cells from your patient synthesized less than normal but
       greater than half of the usual amount of type I procollagen. We are uncertain
       if this finding is significant in terms of disease causation or is simply
       biological variation among samples.

The letter also stated that the tests were “unable to exclude the diagnosis of OI type I.”

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Petitioner asserted that she was unable to obtain this letter during her criminal trial because
it was part of the victim’s file with the Department of Children’s Services (DCS), which was
sealed during the victim’s adoption proceedings.

       The coram nobis court held a hearing on the petition on September 20, 2013. The
only witness to testify at the hearing was Dr. Andrew Townsend, the victim’s primary care
physician for almost ten years. He testified that the victim is currently “a normal, active 10-
year-old child with regular activities, no restrictions.” The victim has not had any broken
bones in the past ten years. Based on his observations and treatment of the victim, Dr.
Townsend opined that she is not affected by osteogensis imperfecta. He described the usual
symptoms of that disease and testified that the victim does not display any of these
symptoms. In addition to recurrent fractures, one such symptom is short stature. Dr.
Townsend testified that the victim is above the 50th percentile in both height and weight.
Dr. Townsend admitted on cross-examination that he has never treated a child who suffered
from osteogenesis imperfecta.

       The coram nobis court took the matter under advisement in order to review the
victim’s medical records as a late filed exhibit. The coram nobis court entered an order
denying the writ of error coram nobis on January 23, 2014. The coram nobis court made the
following findings of fact and conclusions of law:

       The [c]ourt finds that [Petitioner’s] proposed newly discovered evidence
       would not have resulted in a different judgment had it been presented at trial.
       The University of Washington Lab Report is not exculpatory evidence for
       [Petitioner] because it does not reflect a diagnosis of Osteogenesis Imperfecta
       (OI). The Laboratory Report merely states: “we were unable to exclude the
       diagnosis of OI type 1.” Further, Dr. Andrew Townsend has been [the
       victim’s] doctor for nearly ten (10) years and he does not believe she has
       Osteogenesis Imperfecta (OI).

       Petitioner appealed the ruling of the coram nobis court, arguing that the court erred
in concluding that the newly discovered evidence would not have resulted in a different
judgment had it been presented at trial.

                                           Analysis

       The statute governing coram nobis relief provides, in pertinent part:

       Upon a showing by the defendant that the defendant was without fault in
       failing to present certain evidence at the proper time, a writ of error coram

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       nobis will lie for subsequently or 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(b). The writ of error coram nobis is “an extraordinary procedural
remedy,” designed to fill “only a slight gap into which few cases fall.” State v. Mixon, 983
S.W.2d 661, 672 (Tenn. 1999) (emphasis in original). 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)).

       The decision whether to grant or deny a petition for writ of error coram nobis on its
merits rests within the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141,
144 (Tenn. 2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). This
Court will not disturb the coram nobis court’s ruling absent an abuse of discretion. “A court
abuses its discretion when it applies an incorrect legal standard or its decision is illogical or
unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.” State v. Wilson, 367 S.W.3d
229, 235 (Tenn. 2012).

        A petition for coram nobis relief usually must be filed within one year after the
judgment becomes final. T.C.A. § 27-7-103. For the purposes of coram nobis relief, a
judgment becomes final thirty days after the entry of the judgment in the trial court if no post-
trial motion is filed, or upon entry of an order disposing of a timely filed post-trial motion.
Mixon, 983 S.W.2d at 670. Whether a claim is barred by an applicable statute of limitations
is a question of law, which we review de novo. Harris, 301 S.W.3d at 144 (citing Brown v.
Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). The State bears the burden of
raising the statute of limitations as an affirmative defense. Id.; Sands v. State, 903 S.W.2d
297, 299 (Tenn. 1995). Because the State did not raise the statute of limitations in the coram
nobis court, we deem the issue waived.

        Additionally, when a petitioner seeks a writ of error coram nobis based on newly
discovered evidence, due process considerations may require tolling the statute of limitations.
Harris, 301 S.W.3d at 145 (citing Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001)). Our
supreme court has held that, “before a state may terminate a claim for failure to comply with
procedural requirements such as a statute of limitations, due process requires that potential
litigants be provided an opportunity for the presentation of claims at a meaningful time and
in a meaningful manner.” Workman, 41 S.W.3d at 102 (quoting Burford v. State, 845
S.W.2d 204, 208 (Tenn. 1992). This Court previously recognized this issue in Petitioner’s

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post-conviction appeal and noted that “due process requires balancing the ‘governmental and
private interests involved’ and that the statute of limitations must be tolled if the private
interest outweighs the government’s interest in preventing stale and groundless claims.”
Brunelle II, 2011 WL 2436545, at *10 n.3 (citing Burford, 845 S.W.2d at 209). We find that
Petitioner’s interest in this case does outweigh any governmental interest, and we will
address Petitioner’s claim on its merits.

        A petition for writ of error coram nobis must include: (1) the grounds and the nature
of the newly discovered evidence; (2) why the admissibility of the newly discovered evidence
may have resulted in a different judgment had the evidence been admitted at the previous
trial; (3) that the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.
State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004); Hart, 911 S.W.2d at 374-75. The
evidence must be relevant, admissible, and credible. See Wilson, 367 S.W.3d at 235;
Vasques, 221 S.W.3d at 527. The coram nobis court must be “reasonably well satisfied” with
the veracity of the evidence and determine whether the petitioner was truly “without fault,”
that is whether “the exercise of reasonable diligence would not have led to a timely discovery
of the new information.” Vasques, 221 S.W.3d at 527. The court “must then consider both
the evidence at trial and that offered at the coram nobis proceeding in order to determine
whether the new evidence may have led to a different result.” Id. (emphasis in original). In
other words, there must be a “reasonable basis for concluding that had the evidence been
presented at trial, the result of the proceedings might have been different.” Id. (citing State
v. Roberto Vasques et al, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn.
Crim. App. Oct. 7, 2005)).

        In this case, it is clear that Petitioner was without fault in failing to present the
University of Washington letter during her 2006 trial. The letter was part of the victim’s
DCS file, which was sealed by the judge presiding over her adoption. Brunelle II, 2001 WL
2436545, at *3. In our post-conviction review, this Court held that Petitioner’s trial counsel
was not ineffective for failing to obtain the letter and noted that Petitioner “failed to suggest
what more counsel could have done at trial . . . to have gained access to the DCS file.” Id.
at *8. We further noted that Petitioner did not have the letter when she filed her post-
conviction petition or at the evidentiary hearing. Id. at *10. We conclude that Petitioner has
exercised reasonable diligence in this case, which did not lead to a timely discovery of the
evidence in question; therefore, Petitioner is without fault in failing to present the evidence
at the proper time.

       Secondly, the letter clearly relates to an issue litigated at trial, specifically whether the
victim’s injuries could potentially be attributed to osteogenesis imperfecta. See Brunelle I,
2007 WL 2026616, at *5-6. Dr. Robert Thomas, a radiologist who had examined x-rays of

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the victim’s injuries, testified for the State at trial that “the victim showed no signs of
osteogenesis imperfecta,” and that “because the victim did not have the bone disease, normal
play would not cause these types of fractures.” Id. at *5. Dr. Thomas admitted on cross-
examination that “it is not possible to be absolutely certain, based on x-rays, that one does
not have brittle bone disease.” Id. at *6. During the subsequent post-conviction hearing,
Petitioner’s trial attorney testified that he investigated whether osteogenesis imperfecta could
form part of the defense strategy. Brunelle II, 2011 WL 2436545, at *3. Through discovery,
he was provided results from a genetic test conducted by Tulane University that indicated
that the victim’s father was a carrier of the gene that causes osteogenesis imperfecta. Id.
Trial counsel cross-examined the victim’s father about a statement he made that someone in
his family had the disease, but the victim’s father stated that he later learned that was not
true. Id. at *7. Trial counsel also consulted with a forensic pathologist, who reviewed the
discovery materials and came to the opinion that the victim did not have osteogenesis
imperfecta. Id. at *3.

       Finally, there is no dispute as to the veracity of the evidence. This is not a case of
recanted witness testimony, such as in Mixon, that would require a finding that “the
testimony given by the material witness was false and the new testimony is true.” 983
S.W.2d at 673 n.17. The evidence in this case is a letter reporting the results of tests
conducted by the University of Washington. There is no dispute between the parties as to
the authenticity or accuracy of the test results contained in the letter.

       The determinative issue in this case is whether, considering this newly discovered
evidence in conjunction with both the evidence presented at trial and the evidence presented
at the coram nobis proceeding, the result of Petitioner’s trial may have been different.
Petitioner asserts that the coram nobis court applied an incorrect legal standard when it stated
that the University of Washington letter was “not exculpatory evidence for [Petitioner]
because it does not reflect a diagnosis of Osteogenesis Imperfecta” and that it “would not
have resulted in a different judgment had it been presented at trial.” We recognize that the
choice of the words “would have” might reflect a higher standard than the “may have”
standard applied by our supreme court to coram nobis proceedings. See Vasques, 221
S.W.3d at 526 (quoting State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002)).
However, the coram nobis court also found that Petitioner “has not shown even a mere
possibility that her proposed newly discovered evidence may have resulted in a different
judgment,” which is a lower standard than that articulated in Vasques. Id. at 527 (“If based
upon mere ‘possibility,’ coram nobis relief would be available to any defendant who, within
one year of his conviction and sentence, discovers new evidence even if only slightly
favorable to his defense.”). Therefore, we cannot agree that the coram nobis court applied
an incorrect legal standard.



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       Based upon our review of the record, we do not believe that the evidence at issue may
have resulted in a different outcome had it been presented at trial. While the letter states that
a diagnosis of osteogenesis imperfecta could not be excluded and that the victim’s type I
procollagen levels were less than normal, the levels were not consistent with someone who
has the disease. Additionally, while the genetic test performed by Tulane University
indicated that the victim and her father shared a genetic abnormality, because her father had
no symptoms of osteogenesis imperfecta, “it is less likely this alteration is disease causing.”
As this Court stated in relation to Petitioner’s claim of ineffective assistance of counsel:

       [G]iven the evidence at trial, particularly Dr. Thomas’ testimony; the fact that
       neither the Tulane nor the Washington test results proved the victim had OI;
       and the fact that the petitioner’s own potential expert would have testified that
       the victim did not suffer from OI and was “shredded,” we again conclude the
       petitioner has failed to demonstrate any prejudice.

Brunelle II, 2011 WL 2436545, at *8. The coram nobis court also had before it the testimony
of Dr. Townsend, the victim’s primary care physician, that the victim does not display any
of the symptoms of osteogenesis imperfecta and has not had a broken bone since being
removed from the Petitioner’s care. Further, even if the letter confirmed that the victim has
osteogenesis imperfecta, it does not contradict the evidence presented at trial, deemed
sufficient by this Court, that Petitioner caused the victim’s injuries and did not seek treatment
for those injuries for almost two weeks. See Brunelle I, 2007 WL 2026616, at *10. We hold
that the coram nobis court did not abuse its discretion when it denied Petitioner relief.

                                          Conclusion

        Upon a thorough review if the record and arguments in this case, we find no error in
the ruling of the coram nobis court. We, therefore, affirm the court’s decision denying relief.




                                                     _________________________________
                                                     TIMOTHY L. EASTER, JUDGE




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