         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 26, 2005

                CAROLYN WOOSTER v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Dickson County
                           No. CR- 6603 Robert E. Burch, Judge


                No. M2005-01217-CCA-R3-PC - Filed December 12, 2005



A Dickson County jury convicted the Petitioner, Carolyn Wooster, of aggravated child abuse and
neglect and she was sentenced to fifteen years in prison. This court affirmed the conviction on direct
appeal and the Tennessee Supreme Court denied review. The Petitioner filed a petition for post-
conviction relief alleging ineffective assistance of counsel, and the post-conviction court dismissed
her petition. The Petitioner appeals, contending that her trial counsel rendered ineffective assistance
of counsel at trial by failing to adequately investigate her case. After thoroughly reviewing the
record and the applicable law, we conclude that there exists no reversible error. Accordingly, we
affirm the judgment of the post-conviction court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JAMES CURWOOD WITT , JJ., joined.

Geoffrey Coston, Franklin, Tennessee for the Appellant, Carolyn Wooster

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

                                    A. Facts on Direct Appeal

       On direct appeal, this Court affirmed the Petitioner’s convictions and sentence. In our
opinion, we summarized the facts as follows:

              At approximately 7:00 A.M. on March 5, 1998, the [Petitioner] brought the
       victim, a newborn girl, to Horizon Medical Center in Dickson. The defendant
       explained that she had given birth at home the night before and desired to offer the
infant for adoption.

         Dr. Valerie Beck, a pediatrician at Horizon Medical Center, examined the
infant in the labor and delivery area at about 7:15 A.M. Because the victim’s heart
rate was only about 70 beats per minute, Dr. Beck classified the victim’s condition
as critical. She explained that a newly born, crying infant should have a heart rate of
between 130 and 140 beats per minute. Dr. Beck observed that the victim was
cyanotic and grunting, indicating that the victim was in distress. She determined that
there was a substantial risk of death.

         At trial, Dr. Beck testified that the low heart rate was due to a low body
temperature. According to Dr. Beck, the heart rate drops when exposed to cold
temperatures, impairing the heart’s ability to operate correctly. When neither a
digital thermometer or a glass thermometer registered a body temperature, Dr. Beck
made a diagnosis of severe hypothermia. The victim was placed under a radiant
warmer with heated saline bags wrapped in warm towels to raise her temperature.
By 7:40 A.M., the baby’s temperature had risen to 97 degrees.

        Helen Murphy, a registered nurse testified that the defendant claimed that she
had given birth at her home on the previous evening and had been assisted by her
boyfriend and two nurses. According to Ms. Murphy, the defendant claimed that she
had visited an obstetrician on six separate occasions before moving to Tennessee.
The defendant informed Ms. Murphy that her water had broken between 10:30 and
11:00 P.M. and that her contractions began immediately thereafter. She explained
that she came to the hospital in order to offer the infant for adoption. Because the
defendant claimed that she was not experiencing any bleeding, Ms. Murphy initially
suspected that the defendant might not have given birth to the baby. Because her
suspicions were further aroused when she discovered that the defendant was not
producing breast milk and had declined a physical examination, Ms. Murphy asked
the Dickson Police Department to investigate.

       Later, the defendant consented to a physical examination. After being
examined, she was interviewed by Detective Mike Fleaner of the Dickson Police
Department and Rosie Skinner of the Department of Children’s Services. The
defendant again claimed that she had given birth at home and that her boyfriend and
two nurses had assisted in the delivery. During the interview, the defendant
expressed particular concern about being late for work.

        After interviewing the defendant, Detective Fleaner and Ms. Skinner traveled
to the defendant’s residence to question her boyfriend, Jason Huler. According to
Detective Fleaner, Huler stated that he was unaware that the defendant was pregnant
and had not helped in any delivery. After interviewing Huler, Detective Fleaner
drove to the defendant’s place of employment and questioned her a second time.


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       When he arrived, the defendant was in her vehicle, a camper, which was parked in
       her employer’s lot.

                After receiving permission to search the camper, Detective Fleaner found a
       shirt that the defendant had used to clean the infant. Upon further examination at the
       police department, the defendant admitted that she was alone at the time of birth, and
       had placed the victim under the house during the course of the night.

               At trial, the defendant confirmed that she was alone when she gave birth to
       a baby girl at her home at approximately 6:20 P.M. on March 4, 1998. According to
       the defendant, her water broke two and a half days before the delivery. She held and
       breast fed the baby until about 10:00 P.M., when her boyfriend, who was unaware of
       her pregnancy, was scheduled to return from work. The defendant stated that she
       wrapped the infant in a shirt, placed her in a cardboard box, covered her with two
       towels, and then placed the box in a storage area underneath her house.

              The defendant acknowledged that she heard the baby cry around 1:00 A.M.,
       but did not check on her. After hearing whimpering at 4:00 A.M., the defendant
       claimed that she went to the storage area, held the infant for a few minutes, and then
       placed her back in the box. Even though she detected that the infant was cold, the
       defendant conceded that she returned to the house, leaving the baby outside. The
       defendant estimated that about one and a half hours later, she came back to the baby
       and took her into a camper that was parked outside. The defendant testified that she
       cleaned the baby and attempted to breast feed her while in the camper. She stated
       that when the baby would not nurse, she took the infant into her residence and at 6:45
       A.M., she drove her to Horizon Medical Center.

State v. Carolyn A. Wooster, No.M2000-02992-CCA-R3-CD, 2003 WL 440233, at *1-2 (Tenn.
Crim. App., at Nashville, Mar. 18, 2002), perm. app. denied (Tenn. Sept. 23, 2003).

        At trial, Detective Fleaner testified that he called the National Weather Service in order to
obtain the temperature for March 4, 1998, and the National Weather Service reported that the
temperature was 31 degrees at the Nashville airport. Trial counsel told the trial court judge that he
had not anticipated any testimony about the temperature for the night in question and would need
time to rebut the officer’s testimony. The trial court observed that “most prudent lawyers would
have anticipated that the temperature on this date would have been an issue and would have come
prepared to prove it if they thought it was going to be required.” Trial counsel said that he called the
National Weather Service in Nashville, and they said the temperature was 47 degrees on March 4,
1998, but that he did not have any proof to offer into evidence. The trial court judge told trial
counsel that he could bring in evidence about the temperature on the following day of trial. The trial
court noted that “I think either temperature would probably be inappropriate to leave a newly born
infant outside in. This child didn’t freeze to death. This child was cold. It’s body temperature was
low. I think either one would do that.”


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                                      B. Post-conviction Facts

         A copy of the post-conviction hearing transcript is not in the record on appeal before this
Court. It is the duty of the appellant to provide a record which conveys a fair, accurate, and complete
account of what transpired with regard to the issues which form the basis of the appeal. See Tenn.
R. App. P. 24(b); see State v.. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Normally, when
presented with an inadequate record on appeal, this Court must presume that the trial court ruled
correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). Under the circumstances
of this case, however, we believe the absence of the transcript of the post-conviction court’s hearing
is not fatal to appellate review. We find that the record is sufficient to determine the issues raised
on appeal. Thus, we will review the issues on the merits.

        The post-conviction court's findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Absent a record
which would indicate otherwise, we must presume that the findings of the post-conviction court are
correct. According to the post-conviction court’s findings, at the post-conviction hearing, the
Petitioner’s trial counsel testified that he did not contest the actual temperature on the night that the
baby was kept under the house and that he did not know why he did not investigate this issue.
According to the detailed memorandum opinion filed by the post-conviction court, trial counsel also
seemingly testified that his trial tactic was to “show that [the Petitioner] was a good person.”

                                             II. Analysis

        On appeal, the Petitioner contends that, because her trial counsel was ineffective, the post
conviction-court erred when it dismissed her petition. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
Upon review, this Court will not re-weigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony, and the
factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997). A post-conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which is overcome
only when a preponderance of the evidence is contrary to the post-conviction court’s factual findings.
Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are
subject to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.
The Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed
question of law and fact and, as such, is subject to de novo review. Burns, 6 S.W.3d at 461.

        The right of a criminally accused to representation is guaranteed by both the Sixth


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Amendment to the United States Constitution and Article I, section 9, of the Tennessee Constitution.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); Burns, 6 S.W.3d at 461; Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “reasonably
effective” assistance. Burns, 6 S.W.3d at 461. The following two-prong test directs a court’s
evaluation of a claim for effectiveness:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes
       both showings, it cannot be said that the conviction or death sentence resulted from
       a breakdown in the adversary process that renders the result unreliable.

State v. Melson, 772 S.W.2d 417, 419 (Tenn. 1989). To prevail on a claim of ineffective assistance
of counsel, a petitioner must show that “counsel’s representation fell below an objective standard
of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). When evaluating an ineffective assistance of counsel claim, the
reviewing court should judge the attorney’s performance within the context of the case as a whole,
taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988).

         The reviewing court must evaluate the questionable conduct from the attorney’s perspective
at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing
so, the reviewing court must be highly deferential and “should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that criminal petitioners are not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim.
App. 1996). In other words, “in considering claims of ineffective assistance of counsel, ‘we address
not what is prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp,
483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665, n.38 (1984)).

        Counsel should not be deemed to have been ineffective merely because a different procedure
or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276, 279-80
(Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515 (citation
omitted); Thomas Brandon Booker v. State, No. W2003- 00961-CCA-R3-PC, 2004 WL 587644, at
*4 (Tenn. Crim. App., at Jackson, Mar. 24, 2004), perm. app. denied (Tenn. 2004). However,
deference to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. House, 44 S.W.3d at 515.

       In order to render effective assistance, counsel must make all reasonable investigations


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relevant to the case or must make a reasonable decision that renders particular investigations
unnecessary. Burns, 6 S.W.3d at 462. However, “In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.” Id. Failure to conduct a reasonable
investigation constitutes deficient performance. Id.

         If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).

         On appeal, the Petitioner claims that her trial counsel failed to function as effective counsel
as guaranteed by both the Tennessee and United States Constitutions. In this regard, she asserts that
she was denied the effective assistance of counsel because Counsel failed to adequately investigate
her case and to present, at trial, evidence about the temperature on the night of the crime. The
Petitioner asserts that Counsel’s deficient performance undermines confidence in the outcome of her
trial because the State needed to show that the baby was exposed to extremely cold temperatures in
order to establish a link between the Petitioner’s conduct and the baby’s injury. The Petitioner also
contends that Counsel’s conduct prejudiced the Petitioner’s case because the issue of temperature
was essential to proving that the Petitioner knowingly exposed the child to the risk of substantial
bodily injury. The State asserts that the Petitioner failed to demonstrate that her Counsel’s
performance was deficient and failed to show how any alleged errors constituted prejudice sufficient
to undermine confidence in the outcome of her jury trial. We agree with the State.

       In its opinion, the post-conviction court stated that:

               Assuming for the purposes of argument that trial counsel’s performance was
       deficient in failing to establish that the actual temperature was some sixteen degrees
       warmer than that presented in the State’s proof, Petitioner must still establish that
       actual prejudice to Petitioner was caused by the deficient performance . . . .

                At Petitioner’s trial, Dr. Valerie Beck testified that the baby’s body
       temperature was so low that it could not be measured by the instruments available.
       Dr. Beck testified that the baby was suffering from severe hypothermia. She further
       testified that, when placed in a warm environment, the baby’s body temperature rose
       to 97 degrees in fewer than thirty minutes. Dr. Beck testified that the baby was in
       acute distress and that there was a substantial risk of death from this condition. This
       being the case, it matters little whether the outside temperature was sixteen degrees


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       warmer or not. The fact is that, whatever the temperature, the baby was in imminent
       danger of death from hypothermia. . . .

              Certainly, Petitioner was aware of [what] the outside temperature was, at
       most, in the forties and that this situation would be dangerous to the health of a
       newborn. To say that Petitioner did not act knowingly in this situation, whether the
       temperature was in the 20's or 40's, defies logic.

              No prejudicial deficiency in the investigation of Petitioner’s trial counsel has
       been shown by the proof. The issue is without merit.

         The evidence in the record does not preponderate against the findings of the post-conviction
court. Although, as previously noted, the transcript of the evidence at the post-conviction hearing
is not included in the record on appeal, it would appear from the memorandum opinion filed by the
post-conviction court that the Petitioner presented no evidence to establish that Counsel’s alleged
failure to investigate the temperature on the night in question undermined confidence in the outcome
of her trial. Even if the temperature was 47 degrees on the night of the crime, it is nonetheless
abundantly clear in our view that the Petitioner subjected her baby to abuse and neglect by leaving
the baby outside overnight. Whether the temperature was 31 degrees or 47 degrees, the baby’s body
temperature became too cold, and the baby developed hypothermia due to the Petitioner’s actions.
We conclude, as did the post-conviction court, that any alleged deficient representation by counsel
does not undermine our confidence in the jury’s determination that the Petitioner knowingly
subjected her baby to the risk of serious bodily injury and imminent danger of death. Therefore, the
Petitioner is not entitled to relief on this issue.

                                         III. Conclusion

       In accordance with the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.


                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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