                                                                                        05/17/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 6, 2018

                   TINA NELSON v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Lauderdale County
                      No. 9132     Joe H. Walker, III, Judge
                    ___________________________________

                           No. W2017-00343-CCA-R3-PC
                       ___________________________________


A jury convicted the Petitioner, Tina Nelson, of first degree felony murder committed
during the perpetration of aggravated child abuse and of the underlying felony of
aggravated child abuse. She petitioned for post-conviction relief, asserting ineffective
assistance of counsel, and her petition was denied. On appeal, the Petitioner alleges that
she is entitled to post-conviction relief because her trial counsel failed to properly
investigate her case or present witnesses, failed to move for a severance, failed to
properly challenge testimony that she showed no emotion, and failed to establish that her
mental impairment prevented her from assisting in her own defense. After a thorough
review of the record, we affirm the denial of post-conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Scott A. Lovelace, Ripley, Tennessee, for the appellant, Tina Nelson.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Julie Pillow,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

                                           Trial

       The Petitioner’s convictions stem from the death of her two-month-old daughter
on May 11, 2011. State v. Gregory Nelson and Tina Nelson, No. W2014-00494-CCA-
R3-CD(C), 2015 WL 2128598, at *1 (Tenn. Crim. App. May 5, 2015), perm. app. denied
(Tenn. Sept. 21, 2015). The victim sustained severe injuries, including brain
hemorrhages, retinal and optic hemorrhages, and numerous broken ribs in various stages
of healing. Id. at *1. The Petitioner, who has an IQ of 53, and her husband, Mr. Gregory
Nelson, were tried together and both convicted of first degree felony murder and
aggravated child abuse. Id.

       The victim was born prematurely, weighing a little over three pounds at birth, and
she remained in the hospital for approximately two weeks. Id. at *4-5, 9. The Petitioner
and Mr. Nelson could not drive, and they did not visit the victim in the hospital until
informed by the Department of Children’s Services (“DCS”) that they would not be
permitted to take the victim home unless they visited and bonded with her. Id. at *5. The
victim suffered from intrauterine growth retardation, and during her hospital stay, she
was given a cranial ultrasound and an MRI which showed a “[c]ontour irregularity,”
which “may be an unusual location for hemorrhage.” Id.

       The Petitioner and Mr. Nelson met numerous times with a DCS employee, Ms.
Zandra Carter-Mann, regarding the welfare and care of the victim and her older sister.
Ms. Carter-Mann testified that Mr. Nelson had become aggressive with hospital staff and
verbally aggressive to DCS and school employees. Id. at *5-6. The Petitioner followed
Mr. Nelson’s occasional orders to refuse to talk to Ms. Carter-Mann, and she defended
his aggressiveness. Id. at *6. Ms. Dawn Hemby, a youth services officer with the
Lauderdale County Juvenile Court, also testified that the Petitioner was “bullied by” Mr.
Nelson. Id. at *8-9.

        The State presented witnesses who testified about the victim’s condition prior to
her death. On April 20, 2011, the Petitioner and Mr. Nelson’s older daughter had a
pending truancy case, and Ms. Kim Coffee, an employee of the Lauderdale County
Juvenile Court, testified regarding the victim’s well-being at the time of a hearing related
to the truancy case. Id. at *7. The victim had a red spot on her eye and “just stared into
space” rather than interacting with those around her. Id. The victim was outside with her
family for two or three hours dressed only in very lightweight clothing and a light blanket
despite the cold. Id. The Nelsons told Ms. Coffee that they did not have transportation
                                           -2-
and were afraid they would miss their ride. Id. Ms. Hemby confirmed Ms. Coffee’s
testimony that the Nelsons were outside in the cold with the victim, who appeared
“[a]lmost lifeless” and had a blood spot on the white of her eye. Id. at *8. Ms. Coffee
and Ms. Hemby urged the family to consult a physician regarding the victim. Id.

        The Petitioner and Mr. Nelson took the victim to the pediatrician four times after
her discharge from the hospital. Id. at *9. On at least one occasion, Mr. Nelson told a
social worker at the health department that the victim was breathing strangely and
spitting up. Id. On April 28, 2011, after the Nelsons were told by Ms. Hemby and Ms.
Coffee to check on the red spot in the victim’s eye, the Petitioner told a social worker that
she had made a doctor’s appointment for the victim but that it was too cold and rainy to
take the victim and that she would reschedule the appointment. Id. at *9-10.

        Mr. Nelson’s brother, who was also intellectually disabled, stayed with the
Nelsons for a period of time, along with his girlfriend and his girlfriend’s two children.
The defense posited that Mr. Nelson’s brother or R.C., the twelve-year-old son of Mr.
Nelson’s brother’s girlfriend, might have been responsible for the victim’s injuries. The
evidence showed that relations between the Nelsons and Mr. Nelson’s brother were
generally strained, and the Nelsons believed that Mr. Nelson’s brother had told DCS that
they were abusing their older child. Id. at *8. Ms. Coffee testified that she received an
anonymous call that the Nelsons were physically abusing their older daughter, but a
welfare check revealed no injuries on the child. Id. Ms. Coffee also witnessed Mr.
Nelson yell and act “out of control” regarding the incident, and he accused his brother of
fabricating the report. Id. Ms. Hemby confirmed that the report appeared unfounded and
that the child, who was not with her parents at the time, blamed her uncle for the report.
Id. at *9.

       Mr. Nelson testified at trial that the victim injured her head when R.C. pushed the
Petitioner down while the Petitioner was holding the victim. Id. at *12. He also testified
about a time that he had left the victim alone with his brother. Mr. Nelson heard the
victim crying from another room, and when he entered, his brother was leaning over the
baby and “told him to ‘get [his] damn kid.’” Id.

        Mr. Nelson testified that on the day of the victim’s death, the Petitioner was
outside waiting with their older daughter for the bus, and the Petitioner had the telephone.
Id. at *13. Mr. Nelson remained inside with the victim, who suddenly spit up. Id. at *12
Mr. Nelson suctioned the victim’s mouth and nose and saw her turn pale and then blue.
Id. Mr. Nelson attempted to perform CPR on the victim, and once the Petitioner came in,
Mr. Nelson called 911. Id. He testified that the victim’s rib fractures could have been
caused by CPR. Id. at *14. According to Mr. Nelson, the ambulance took an hour to
arrive. Id. at *13. Mr. Nelson testified that the Petitioner also accidentally bumped the
                                            -3-
victim’s head on a doorknob. Id. He denied injuring the victim in any way, and he
testified that the Petitioner would not have hurt the victim. Id. He claimed never to have
been alone with the victim. Id.

       The Petitioner also testified at trial, and she denied hurting the victim or seeing
anyone else hurt the victim. Id. at *19. She confirmed that R.C. knocked her down while
she was holding the victim, but she could not say whether the victim sustained serious
injuries in the fall. Id. She likewise testified that she bumped the victim’s head on a
doorknob but stated it did not leave a mark. Id. The Petitioner recalled seeing Mr.
Nelson’s brother pick up the crying victim, and she testified that when she asked what
was wrong with the baby, Mr. Nelson’s brother said he was getting tired of hearing her
cry. Id. at *20. She acknowledged that the victim cried constantly. Id.

        The Petitioner testified that she was waiting for the school bus with her older
daughter on the morning of the victim’s death. Id. at *21. The Petitioner said that the
victim died while the Petitioner was outside, that Mr. Nelson attempted to perform CPR,
and that she performed CPR on the victim while Mr. Nelson called 911. Id. The
Petitioner explained that there was a delay in calling 911 because she had to wait with
their older daughter for the school bus to arrive. Id.

       Mr. William Freeman, an emergency medical technician, testified that the
ambulance arrived eleven minutes after he received the emergency call and that the
victim was at that time obviously lifeless. Id. at *1. He stated that the Petitioner was
hysterical, that Mr. Nelson had to be restrained because he thought emergency personnel
should have arrived sooner, and that neither the Petitioner nor Mr. Nelson came to the
ambulance to check on the victim. Id. He testified that the Petitioner and Mr. Nelson
went to a car with relatives and were smoking and laughing as though nothing had
happened. Id. The Petitioner and Mr. Nelson denied this. The Petitioner testified that
she did not ask to see the victim because she did not want to interrupt any lifesaving
measures. Id. at *21. She also testified that she was distraught when the victim died, and
she denied smoking and laughing with Mr. Nelson. Id. at *19. Mr. Nelson testified that
he did ask to see the victim in the ambulance, and he denied laughing and smoking after
the victim’s death. Id. at *14.

       Sheriff Steve Sanders testified that the Petitioner told him that she had placed the
victim on a mattress on the floor with a bottle and had walked away. Id. at *2. The
Petitioner told him that the victim was unresponsive when she returned and that Mr.
Nelson called 911. Id. Sheriff Sanders testified that both the Petitioner and Mr. Nelson
were “calm.” Id. The Petitioner denied having told Sheriff Sanders that the victim
stopped breathing on the mattress. Id. at *21. Instead, she reiterated that the victim died
while the Petitioner was waiting for the bus with her older daughter. Id. at *21.
                                           -4-
       After the victim’s death, Mr. Nelson gave a statement to police noting that R.C.
had pushed down the Petitioner while she was holding the victim and that the victim hit
her head. Id. at *10. He also stated that his brother, the victim’s uncle, was left alone
with the baby and that the baby started to cry. Id. In her statement to police, the
Petitioner explained the victim’s injuries by stating that she was knocked down by R.C.
while holding the victim, that she accidentally bumped the victim’s head on a doorknob,
that R.C. and his sister were throwing things at the baby, and that she once left the baby
with Mr. Nelson’s brother while she did laundry. Id. Investigator Joe Pursell testified
that the Petitioner and Mr. Nelson cried at the hospital on the day of the victim’s death
but showed no emotion thereafter. Id.

        A medical examiner for Shelby County, Dr. Miguel Laboy, testified about the
victim’s numerous injuries. The victim had an abrasion on her nose and a bruise under
her jaw, which he testified was unusual in an infant because it is a protected area. Id. at
*2. He acknowledged that administering CPR could cause bruising. Id. at *3. Dr. Laboy
found three hemorrhages under the victim’s skull, and he testified that they were caused
by older as well as more recent injuries. Id. at *2. He concluded that the hemorrhages
were from trauma. Id. at *3. He likewise found perioptic hemorrhages and a retinal
hemorrhage that were the result of trauma. Id. The victim had six fractured ribs on the
left lateral side, eight on the left posterior side, and five on the right lateral side. Id. He
stated that these fractures were healing with calluses and that there was a recent refracture
of one left posterior rib with blood accumulation. Id. The fractures, except for the most
recent refracture, could have resulted from a single event. *3. The injuries were
consistent with “squeezing type of inflicted trauma.” Id. at *3. Dr. Laboy did not
discount the possibility that the multiple rib fractures could have occurred if someone
holding the victim fell. Id. at *4. The victim was suffering from recent pneumonia. Id.
Dr. Laboy testified that in his opinion, the victim died of a closed head injury that
involved new bleeding over an older brain injury. Id. He acknowledged that the victim’s
internal injuries would not be visible to the Petitioner. Id. at *4.

       Mr. Nelson’s stepmother testified that the Petitioner and Mr. Nelson were both
crying immediately after the victim’s death and that they were not laughing. Id. at *14.
She testified that she had taken care of the victim in late April, and the victim slept for
most of the three-hour visit. Id. at *15. Mr. Nelson’s stepmother had difficulty waking
the victim to feed her, and the victim began crying continuously and simply would not
stop. Id. Mr. Nelson’s stepmother felt that the crying was excessive and abnormal. Id.

      Jeremy Booker, a jailhouse informant, testified that he witnessed Mr. Nelson
speaking with a gray-haired man in a suit and that he heard Mr. Nelson say that he hit,
slapped, and kicked the victim because she was crying while he wanted to sleep. Id. at
*11. The man Mr. Nelson was allegedly speaking with was not identified, and Mr.
                                             -5-
Booker was cross-examined about inconsistent statements he had made regarding the
timing of Mr. Nelson’s alleged confession. Id. An attorney who did not have gray hair
testified that he met with Mr. Nelson about unrelated matters around the time of the
alleged confession and that Mr. Nelson did not say anything about injuring the victim.
Id. at *12. Mr. Nelson denied making the statements. Id.

        The Petitioner presented the testimony of Dr. Fred Steinberg, a forensic
psychologist. Dr. Steinberg testified that the Petitioner had an IQ of 53, which indicated
that she “would have the intellect of a first or second grade child.” Id. at *15. He
testified that the Petitioner, in her statement to police, gave different answers to how the
victim was injured because she was either unaware of the reason or she wanted to give
the interviewer an answer that the interviewer would accept. Id. at *15-16. The
Petitioner had been diagnosed with psychosis prior to the victim’s death, and she suffered
hallucinations. Id. at *16-17. He testified that the Petitioner would not be able to
appreciate consequences and that she would not be the one to make decisions in a
relationship. Id. at *16.

        Dr. Steinberg testified that the Petitioner was nevertheless competent to stand trial
based on the “Evaluation of Competency to Stand Trial – Revised,” which consisted of a
structured interview. He explained that determining competency is “based upon several
things, understanding how the court works, and if you’re not understanding it, being able
to retain it, being educated and retain[ing] it; working with your lawyer; having an
understanding of the charges against you; and so on and so forth.” Id. at *17. He
testified that the Petitioner understood the difference between right and wrong. Id.

       The jury convicted both the Petitioner and Mr. Nelson of first degree felony
murder and of aggravated child abuse. The Petitioner was sentenced to life in prison for
the murder conviction and to fifteen years for the aggravated child abuse conviction. Id.
at *1. Due to an untimely notice of appeal, this court reviewed only the sufficiency of the
evidence on direct appeal. Id. at *22. The Petitioner’s convictions were affirmed. Id. at
*29.

                              Post-Conviction Proceedings

       The Petitioner filed a timely petition for post-conviction relief, and she was
appointed counsel. At the post-conviction hearing, the Petitioner testified that she
graduated from high school but that all of her classes, save a home economics class, were
special education classes. She could write and read “a little bit.” She was given
instructions on caring for the victim prior to the victim’s release from the hospital. The
Petitioner testified that the victim was diagnosed with intellectual disabilities and other
medical problems, including a heart condition. At the time of her death, the victim was
                                            -6-
on prescription antibiotics and taking formula, and she was experiencing a reaction to the
antibiotics. The Petitioner stated that the victim had a seizure on the night before she
died. She also testified that the appearance of blood clots in the brain “runs in the family
on both sides.”

        The Petitioner testified that trial counsel did not call her mother as a witness. She
acknowledged that her mother did not live nearby and could not have testified regarding
the victim or facts of the case. The Petitioner stated that she had wanted to testify at trial
and that she did not want her trial severed from Mr. Nelson’s trial. She acknowledged
that trial counsel cross-examined Mr. Booker about Mr. Nelson’s alleged jailhouse
confession. She testified, however, that she felt trial counsel did not adequately research
and prepare and that he should have “got down into the case, read by page by page.” She
testified that trial counsel conveyed plea offers to her but that she was scared to take the
offers.

       Trial counsel testified that he was the second attorney to represent the Petitioner.
The Petitioner’s first attorney had retained Dr. Steinberg and another expert witness.
However, the other expert witness, who has since been “suspended,” “dropped off the
face of the earth,” and trial counsel’s numerous attempts to contact him failed. Trial
counsel instead hired a pediatric nurse who spent over twenty hours helping him to
understand the medical proof. Trial counsel testified that he met with the Petitioner
several times but that the Petitioner would “get stuck in a loop” and begin to repeat the
same thought over and over, making a prolonged meeting useless.

       Trial counsel testified that when he tried to discuss the medical proof with the
Petitioner, she would repeat over and over that she wanted to know what had happened to
cause the death of her child. Trial counsel attempted to locate an expert pathologist to
counter Dr. Laboy’s testimony but was unable to do so because Dr. Laboy was affiliated
with a large medical group. He testified that he wished he “would have done more” to
counter the medical testimony by securing an expert pathologist. He acknowledged that
another pathologist might have agreed with Dr. Laboy’s conclusions. Trial counsel
introduced the victim’s medical records at trial in an effort to imply that her injuries may
have been perinatal. The Petitioner never told trial counsel that the victim had a seizure
the night before she died. Trial counsel testified that the Petitioner’s mother could not
have given testimony regarding the facts of the case and could only have given “social
context.”

       Trial counsel testified that this was a case that caused him to second-guess his
actions and that at the time of trial,



                                            -7-
       I focused on her competency to stand trial. And what I did not do was ask
       Dr. Steinberg to assist me in evaluating whether she was competent to
       assist me in her defense. I mentioned to [the prosecutor] that we would get
       stuck [i]n these loops. No, I did not have Dr. Steinberg evaluate whether
       she was competent to assist me at trial.

Trial counsel testified that if it had occurred to him, he would have had the Petitioner
evaluated to determine her capability in assisting in her own defense. He acknowledged
that Dr. Steinberg found the Petitioner competent to stand trial and that Dr. Steinberg
testified in detail regarding her ability to process and communicate.

        Trial counsel testified that whenever he approached the Petitioner with a plea
offer, she would again “hit another one of those loops,” repeating over and over that she
did not want to go to prison. The State extended a three-year plea offer with the
possibility of alternative sentencing, but trial counsel could not promise the Petitioner she
would not go to jail, and she consequently refused the offer.

       Trial counsel considered filing a motion to sever the Petitioner’s trial from Mr.
Nelson’s trial. He testified that he made a strategic decision not to do so because he felt
the jury would want to hold someone accountable for the victim’s death and he believed
that the jury was more likely to acquit the Petitioner if they had the option of returning a
conviction for Mr. Nelson at the same time.

        Trial counsel stated that he tried to counter the testimony that the Petitioner did not
manifest emotion on the victim’s death. He noted that anyone who had observed the
Petitioner “would understand that her emotion doesn’t run like you would normally
expect someone’s emotion” to run and that Dr. Steinberg testified about the Petitioner’s
affect.

       The post-conviction court found that the Petitioner did not establish either that trial
counsel was deficient or that any deficiency was prejudicial, and it denied the petition for
post-conviction relief.

                                        ANALYSIS

        On appeal, the Petitioner asserts that her trial counsel performed deficiently in
failing to investigate the medical proof or call witnesses, failing to move for a severance,
failing to properly cross-examine witnesses, and failing to have the Petitioner’s ability to
assist in her own defense evaluated. The State responds that the Petitioner has not shown
deficiency and prejudice for any of her claims.

                                             -8-
       A post-conviction petitioner must establish that his conviction or sentence is void
or voidable due to the abridgment of any constitutional right. T.C.A. § 40-30-103. The
petitioner bears the burden of proving the allegations of fact in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f); Ward v. State, 315 S.W.3d 461, 465 (Tenn.
2010). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff v. State,
297 S.W.3d 208, 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998)). The findings of fact made by a post-conviction court are conclusive
on appeal unless the evidence preponderates against them. Ward, 315 S.W.3d at 465.
This court may not substitute its own inferences for those drawn by the post-conviction
court, and questions concerning the credibility of witnesses, the weight and value of the
evidence, and the factual issues raised by the evidence are resolved by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). A claim of
ineffective assistance of counsel raises a mixed question of law and fact which this court
reviews de novo. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). The trial court’s
conclusions of law are reviewed under a purely de novo standard with no presumption of
correctness. Id.

       Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution guarantee the accused the right to counsel. This right has
been defined as the right to the reasonably effective assistance of counsel, or assistance
“‘within the range of competence demanded of attorneys in criminal cases.’” Vaughn v.
State, 202 S.W.3d 106, 116 (Tenn. 2006) (quoting State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999)). The overall standard of effectiveness is “whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. (quoting Strickland v. Washington, 466
U.S. 668, 686 (1984)).

       To show that relief is warranted on a claim of ineffective assistance of counsel, the
petitioner must establish both that counsel’s performance was deficient and that the
deficiency prejudiced the defense. Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007).
Deficiency requires showing that counsel’s errors were so serious “that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. To demonstrate deficiency, the petitioner must show that
counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008).
Courts must make every effort “‘to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.’” Felts v. State, 354 S.W.3d 266, 277
(Tenn. 2011) (quoting Strickland, 466 U.S. at 689). “‘[A] reviewing court must be highly
deferential and should indulge a strong presumption that counsel’s conduct falls within
                                           -9-
the wide range of reasonable professional assistance.’” Id. (quoting Burns, 6 S.W.3d 453
at 462. In evaluating counsel’s performance, strategic choices “‘made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.’” Id. (quoting Strickland, 466 U.S. at 690-91). The reviewing court must
begin with “the strong presumption that counsel provided adequate assistance and used
reasonable professional judgment to make all strategic and tactical significant decisions.”
Davidson v. State, 453 S.W.3d 386, 393 (Tenn. 2014).

        In determining prejudice, the post-conviction court must decide whether there is a
reasonable probability that, absent the errors, the result of the proceeding would have
been different. Grindstaff, 297 S.W.3d at 216. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Honeycutt, 54 S.W.3d
at 768 (quoting Strickland, 466 U.S. at 694). “That is, the Petitioner must establish that
his counsel’s deficient performance was of such a degree that it deprived him of a fair
trial and called into question the reliability of the outcome.” Finch, 226 S.W.3d at 316.
Because both prongs must be established for relief, a court need not address both if the
defendant has failed to prove either deficiency or prejudice. Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996).

                    A. Failure to Investigate and to Call Witnesses

       The Petitioner contends that trial counsel did not adequately investigate her case.
She notes in particular that an expert pathologist might have disputed the medical
evidence at trial. The Petitioner cites to trial counsel’s own testimony that he felt he
should have secured an expert pathologist to attempt to dispute the medical proof. The
Petitioner also testified that trial counsel did not call her mother to testify.

       Trial counsel testified that he spent over twenty hours reviewing the medical proof
with a pediatric nurse, that he presented the expert testimony of Dr. Steinberg, and that he
attempted to locate a pathologist to testify for the Petitioner but was stymied by Dr.
Laboy’s affiliation with a large medical group. He testified that in retrospect, he should
have tried harder to find his own expert pathologist.

        When a claim of ineffective assistance of counsel is premised on counsel’s failure
to interview or call witnesses, the witnesses must be presented at the post-conviction
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “‘As a general
rule, this is the only way the petitioner can establish that ... the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the petitioner.’” Pylant, 263 S.W.3d at 869 (quoting
                                           - 10 -
Black, 794 S.W.2d at 757). This is because the court cannot speculate as to what a
witness’s testimony might have been. Black, 794 S.W.2d at 757. Presenting the witness
allows the post-conviction court to determine whether that witness’s testimony would
have been credible, material, and admissible. Pylant, 263 S.W.3d at 869-70.

        Here, the Petitioner did not present the testimony of either her mother or an expert
pathologist who disputed the medical proof at trial. Trial counsel testified that he
attempted to secure a pathologist but that he was unable to do so because Dr. Laboy was
affiliated with a large medical group. He put considerable effort into reviewing and
understanding the medical proof. We conclude that the Petitioner has not shown
deficiency or prejudice.

                           B. Failure to Move for Severance

       The Petitioner asserts that trial counsel was deficient in failing to move for a
severance. At the post-conviction hearing, trial counsel testified that he considered
moving for a severance but thought it would be in the Petitioner’s best interest to be tried
together with Mr. Nelson. Trial counsel noted that the jury would want to hold someone
accountable for the victim’s death, and he felt that the jury would be more likely to blame
Mr. Nelson than to blame the Petitioner if the two were tried together. Accordingly, the
decision not to move for a severance was a strategic decision, and strategic decisions,
when made after a thorough investigation, are “virtually unchallengeable.” Felts, 354
S.W.3d at 277. The Petitioner has furthermore failed to present any argument that a
motion to sever would have been granted. See Jesse Wade Glover v. State, No. W2010-
01679-CCA-R3-PC, 2012 WL 12932004, at *4 (Tenn. Crim. App. June 6, 2012)
(denying relief for alleged deficiency in failing to ask for severance when the petitioner
did “not offer any evidence to support that a severance in this case would have been
proper”); Black, 794 S.W.2d at 758 (denying post-conviction relief for failure to file
severance when there existed “neither factual nor legal basis for the granting of a
severance”). She is not entitled to relief.

                           C. Inadequate Cross-Examination

        The Petitioner asserts that trial counsel was deficient in insufficiently disputing
testimony that she showed no emotion on her daughter’s death. While she does not
identify the exact testimony at issue, Mr. Freeman testified that the Petitioner was
hysterical at first but later seemed unconcerned about the victim’s death, Sheriff Sanders
testified that the Nelsons were “calm,” and Investigator Pursell testified that the
Petitioner cried at the hospital but showed no emotion thereafter. The Petitioner, Mr.
Nelson, and Mr. Nelson’s stepmother all testified that the Petitioner was crying and upset
and not laughing at the time of the victim’s death. Trial counsel cross-examined Mr.
                                           - 11 -
Freeman regarding his statement that the Petitioner was “hysterical,” and he confirmed
that she was “very agitated.” The Petitioner does not specify how trial counsel could
have further discredited the testimony regarding her emotional state. Trial counsel
testified that he did not believe the testimony was particularly important because anyone
observing the Petitioner would conclude that her emotional responses might be unusual
due to her mental limitations. Trial counsel presented proof tending to counter the
prosecution’s evidence that the Petitioner was unemotional, and we conclude that the
Petitioner has not established either deficiency or prejudice. See Tony Young v. State,
No. W2007-00328-CCA-R3-PC, 2009 WL 5083498, at *6 (Tenn. Crim. App. Dec. 28,
2009) (holding that trial counsel’s performance in cross-examining victims was not
deficient when trial counsel questioned the victims and presented other witnesses to rebut
their testimony).

    D. Failure to Evaluate the Petitioner to Determine her Ability to Assist in her
                                       Defense

        The Petitioner contends that trial counsel was deficient in not having her ability to
assist in her defense evaluated. Trial counsel testified that, in hindsight, he felt he should
have asked Dr. Steinberg to evaluate the Petitioner’s ability to assist in her own defense.
He noted that the Petitioner refused a three-year plea offer which might have included
alternative sentencing. He felt that the Petitioner’s refusal was not logical but that she
was “stuck in a loop” where the only thought in her head was that she wanted to avoid
prison entirely. Evidence at trial established that the Petitioner had an IQ of 53 and
functioned at the level of a first or second grade child.

       Under the Fourteenth Amendment to the United States Constitution and article I,
section 8 of the Tennessee Constitution, a person who is mentally incompetent may not
be put on trial. State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000). The standard for
determining competency to stand trial is whether the accused has “the capacity to
understand the nature and object of the proceedings against him, to consult with counsel
and to assist in preparing his defense.” Id. (quoting State v. Black, 815 S.W.2d 166, 174
(Tenn. 1991)). The defendant bears the burden of establishing incompetency by a
preponderance of the evidence. State v. Reid, 164 S.W.3d 286, 307 (Tenn. 2005).

        At trial, Dr. Steinberg testified that he evaluated the Petitioner for competency and
that he found her competent to stand trial. He explained that the evaluation was based in
part on the patient’s ability to “work[] with [her] lawyer.” Dr. Steinberg concluded that
the Petitioner was “able to do that” based on a standard competency test which utilized a
structured interview. The post-conviction court found that the issue of the Petitioner’s
ability to assist in her defense was “brought up at trial and a doctor testified that she was
able to stand trial.”
                                            - 12 -
        While trial counsel’s testimony supports the conclusion that the Petitioner’s ability
to assist in her own defense was impaired, the question presented in this post-conviction
case is whether trial counsel performed deficiently in failing to obtain further
psychological testing of the victim. The record as a whole establishes that Dr. Steinberg
did in fact consider the Petitioner’s ability to work with trial counsel and that in Dr.
Steinberg’s expert opinion, she met the medical criteria for competency, including the
ability to consult with counsel and assist in her defense. See Blackstock, 19 S.W.3d at
205-06 (concluding that the defendant, who had an IQ of 55, was competent to stand
trial). Furthermore, without expert testimony showing that the Petitioner was, in fact, not
competent to assist with her own defense, the Petitioner cannot establish prejudice.
Accordingly, we affirm the denial of post-conviction relief.

                                     CONCLUSION

       Based on the foregoing, the judgment of the post-conviction court is affirmed.




                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




                                           - 13 -
