 Wayne Burgess Jr. (left) with Jason Gichner, deputy director Tennessee Innocence Project (Photo: Tennessee Innocence Project)
The toddler was intubated and began breathing with assistance. An x-ray taken to make sure she was properly intubated showed a healed rib fracture. Medical personnel saw healed circular scars on the girl’s body. Her pulse was extremely weak. Transport by air was impossible due to adverse weather. At about 8 p.m., the girl was taken by ambulance to a hospital about 45 miles away in Huntsville, Alabama. Despite the efforts of a team of nurses and physicians, Nakeavia was pronounced dead at 10:45 p.m.
On August 12, 1997, Pulaski police detective Joel Robinson interviewed 34-year-old Wayne Burgess Jr., who was Rivers’s boyfriend and had spent the afternoon of August 8 with Rivers and Nakeavia. Burgess said that Rivers and Nakeavia picked him up after work, they went to a Sonic for food, then visited a store to look at computer desks, before arriving at Rivers’s home. Nakeavia had fallen asleep in Burgess’s lap, so he carried her inside and put her on a couch.
While Rivers was out of the room, she later claimed she heard a groan or a whine. When she came back to the living room, Burgess was holding the child, who was in distress. She said she took the child and sat down. “She was grunting,” Rivers later testified. “And she couldn’t sit up. I set her up on my lap and she fell over on my arm to my chest. And I then…stood her on the floor and she fell to the floor.”
Rivers said she scooped up the child and said she was going to the hospital. Burgess offered to come with her, but she went on ahead by herself.
On August 12, 1997, Dr. Charles Harlan, a pathologist, reported the findings of his autopsy on the girl, conducted the day before. He said he noticed the healed scars on the child’s chest and abdomen and estimated they were about three months old. He said that the child’s cause of death was the result of bleeding “caused by laceration of the liver or tear of the liver, which is produced by blunt trauma to the abdomen.”
Harlan estimated that death occurred “probably within a matter of a few hours after the time of injury…That’s from the time of injury to the time of actual death.”
On August 13, Burgess voluntarily went to the police department where he was interviewed by Detective Robinson and Detective John Dickey. The events of the two hours of questioning would be disputed and ended with Burgess signing a statement of less than two pages saying that he had struck Nakeavia because she was crying.
Burgess denied confessing. He claimed he never read the statement and only signed it because the detectives told him it was “routine procedure.” Burgess would later testify that Dickey threatened to “put his shoe up my ass,” that he tried to leave, but detective Dickey pushed him back down into his chair. His request for a lawyer was refused and ridiculed—the detectives told him Burgess couldn’t afford to hire the lawyer he named, Joe Henry Jr..
Burgess was allowed to leave the station after he signed the statement. In September 1997, a Giles County grand jury indicted him on a charge of first-degree felony murder.
On January 25, 1998, Burgess went to trial in Pulaski County Circuit Court.
The timing and cause of Nakeavia’s death were the focus of the trial. The defense contended that Burgess did nothing to cause the child’s death. The prosecution contended, based on the autopsy and Burgess’s statement, that he was responsible.
During a preliminary hearing in October 1997, Rivers testified that she believed the healed scars on Nakeavia’s abdomen had been there since the toddler was at daycare, but that the other healed scars on Nakeavia’s chest were not present on the day of her death.
The judge noted at that time: “[T]his picture [of the scars on Nakeavia] that was introduced is very disturbing…I am very much disturbed about the condition of this body from something that has happened sometime prior. I don’t know how far behind the tragic death of this child…There are several real bad scars. Outstanding scars. …Are you going to sit there and tell this Court that you don’t know how these scars happened?”
Rivers had replied, “She had scars on her stomach. I never saw anything on her chest. She had scars on her stomach, and they had been there from the time that she was at that daycare.”
“You don’t recall seeing this group of marks all the way up and down her chest that looks like an arch of buttons?” the judge had asked.
“They were not there the day that I dressed her,” Rivers had said. “They were not there on August 8, when I dressed her that day. They were not there.”
The judge had declared, , “[S]omewhere down the road, you’re going to have to look at this picture, so you might as well get your mind set, ready to look at it, because there is somebody going to ask some questions about it. Some real strong questions.”
In her trial testimony, Rivers gave a different account. She told the jury that had noticed all of the scars on Nakeavia, both the marks on the abdomen and the marks on the chest, when Nakeavia was in daycare.
Rivers testified that she and Burgess and Nakeavia arrived home at about 7 p.m. She remembered the time because the television program Family Matters had just come on. Rivers said Burgess carried Nakeavia, who was sleeping, into the house and laid her on the couch. Rivers said she retrieved the toddler’s baby bag from the car, and then went upstairs. She said she heard a “whine,” came downstairs, and Nakeavia was unable to sit or stand.
Rivers testified that Burgess had never raised a finger to the child, but had recently said that Nakeavia was getting old enough to be spanked on her bottom for misbehaving.
Nurse Kathy Norman said she was just beginning her 7 p.m. to 7 a.m. shift when Rivers came in holding Nakeavia. Norman said the child’s abdomen was hard and distended, a possible sign of internal bleeding. Norman also testified that Nakeavia was dehydrated. Norman said that after the child was taken to Huntsville, she called 911 and dictated a report for police because of “the questionable circumstances of this child’s injury and illness, and because of the healed scars on her abdomen.”
Dr. Dusan Teodorovic was on duty in the emergency room when Nakeavia arrived. Teodorovic said the toddler was comatose and not responsive. He said he intubated Nakeavia and she began breathing a bit more steadily and frequently. He said she was critically ill, severely dehydrated, and had blood in her stool.
Dr. Teodorovic said he saw the child at 7:05 p.m. Burgess’s defense attorney Bobby Sands asked “If this child had just sustained a traumatic blow to its abdomen, would you have expected to see the child in the condition you saw it?”
“I would not expect [her] to be [in] as traumatic [a] condition in such a short time,” Dr. Teodorovic testified. “Usually, when you have a severe injury…you lose blood, but you are still preserving…fluids.”
“You described this child as flaccid?” Sands asked.
“Correct. Limp,” Dr. Teodorovic said.
“And,” Sands asked, “If a child or person had sustained the traumatic injury that is described here, would…you expect them to be flaccid and that degree of respiratory distress?”
“I would not,” Dr. Teodorovic said.
Dr. Robert Huse, a radiologist, testified that he read the x-rays of Nakeavia’s chest to make sure the breathing tube was correctly inserted. He said he noticed a healed fracture of a rib. He said he believed it was “several weeks old.”
Nurse Beverly Hall was on duty when Nakeavia arrived at the hospital. “Her abdomen was very distended, and she was not conscious,” Hall said. Concerned that the distended abdomen was caused by air, a tube was inserted, but that did not help.
“And what do you think the significance of that would be?” asked the prosecutor, Robert Sanders.
“Well, then you would think of some abdominal injury,” Hall said.
She said resuscitation efforts lasted about an hour and 45 minutes, before Nakeavia was pronounced dead at 10:45 p.m.
Dr. Robert Story, an emergency room physician in Huntsville, said that Nakeavia was not breathing on her own when she arrived. The breathing tube was reinserted, and cardiopulmonary resuscitation was begun in the emergency room. He said the efforts were stopped at 10:45 p.m. and he declared Nakeavia dead.
He noted the girl’s firm abdomen and said, “the significance of a firm abdomen is there has been some process in which something has ruptured and she is bleeding internally.”
He said he signed the certificate of death and listed the case as “cardiopulmonary arrest, secondary to blunt abdomen trauma.”
Detective Robinson testified that Burgess signed an acknowledgement that his Miranda warnings had been read. Robinson said he began asking Burgess questions and was stopping to type up his responses. Detective Dickey was “in and out” of the interrogation, he said.
Robinson said Burgess gave the same account as he had during the first interview on August 12, but then changed his statement. Asked why, Robinson said, “Investigator Dickey had spoke [sic] to him and told him that…it would be in his best interest to tell the truth, and come about…He told him that he would help as far as he could in the legal system, if [Burgess] came around and told the truth. But if he didn’t, [Dickey] would put his shoe up his ass.”
Robinson said he did not believe that was a physical threat.
Robinson read the statement to the jury, which quoted Burgess as saying that when he brought Nakeavia into the house, “I laid her down by my lap. Then once Nacia left, she kept crying, and I accidentally hit her in the stomach…I was telling her to be quiet, and I hit her harder than I meant to.”
The statement also quoted Burgess as saying that Nakeavia groaned and “raised her arms up and started gasping for breath. That is when I realized that I had hit her harder than I meant to.” At the end, the statement quoted him as saying, “I really care about her and I did not mean for this to happen. It was just an accident. I’m sorry that it happened.”
Robinson said that Burgess read the statement and signed it. “After the statement was over, [Burgess] asked me if he needed a lawyer, and I told him it probably would be a good idea to get one.”
During cross-examination, Robinson denied that Burgess had tried to leave and was pushed back into his chair by Dickey. Robinson also denied that Burgess said he wanted to contact an attorney named Joe Henry.
Robinson said that he and Dickey had spoken to child welfare workers to try to determine where the older scars came from. He said, “It was noted that [Rivers] had removed the child from daycare because of some of these scars.”
Detective Dickey stated that he had been listening to the interrogation by Robinson. “And listening to what was being said…I just felt like the truth and the full truth was not being disclosed,” Dickey said. “I told Mr. Burgess, as a figure of speech, that [I] would put my shoe up his ass, within the judicial system. And I made it clear to him that I did not mean that as [a] physical threat or physical harm whatsoever….and if I found out he lied to me, then I would do everything in my power and authority to see that justice was brought upon him.”
Dickey said that Burgess then “dropped his head in hand” and then admitted that he had struck Nakeavia. Dickey denied pushing Burgess back in his chair. He also denied that Burgess said he wanted a lawyer named Joe Henry.
On the third day of the trial, Dr. Harlan, the medical examiner who performed the autopsy, testified that Nakeavia died “as the result of bleeding caused by laceration of the liver or tear of the liver, which [was] produced by blunt trauma to the abdomen.” He said that meant that “there has been a blow to [the] abdomen from some object: a fist, an open hand, a boot, a shoe, a baseball bat, a cow horn. Any number of things can cause it.”
Asked if he had an opinion on the amount of force needed to cause the injuries he described, Dr. Harlan said, “It requires a blow or blows of considerable force. Probably the best way to say it would be the way that the folks in the Ozarks said it when I was growing up. The expression that they had that would explain this was that somebody fetched this child a right smart lick.”
Dr. Harlan estimated that symptoms could be present “anywhere from 15 minutes to a half hour or so.”
The prosecution called Rickey Sikes, a longtime friend of Burgess’s, who had given a statement to Detective Dickey in September 1998, 13 months after Nakeavia died. In the statement, Sikes said that during a conversation in March 1998, Burgess had told him “the child was crying and he had to discipline her by tapping her.”
During cross-examination, Sikes denied that Burgess had admitted striking the child. “Did he ever tell you that he hurt this child?” defense attorney Sands asked.
“No, sir,” Sikes replied. He added that Burgess was not a man of anger or violence.
The defense also called two daycare workers who denied that Nakeavia suffered any injuries in their care.
Burgess testified and denied that he confessed. He said he denied that he had struck or harmed the child in any way. He denied being read his Miranda warnings. Defense attorney Sands showed a written copy of the Miranda warnings which Burgess had signed.
“Why would you sign a piece of paper that wasn’t read to you or you didn’t read?” Sands asked.
“Because they just told me it was basic procedure,” Burgess replied.
Burgess said that during the interrogation, he repeatedly denied harming Nakeavia. “They kept asking me the same questions, over and over, about did I hit the baby?” Burgess said. “Did I do anything to reflect any harm on this child. I told them—my response each time was, no. I did not do it.”
“Then all of a sudden, [Detective Dickey] got upset and came over to me, and he said, ‘You see my shoe?’...He pointed down at his shoe,” Burgess said. “He said, ‘I will put my foot up your ass if you do not tell us the truth’….he was very angry.”
Burgess said, “When I attempted to leave the interview area, then he pushed me back down in the seat. And that’s when…I stood up and said, ‘I need to call my attorney, Joe Henry J.r’ And they told me that I could not afford Joe Henry Jr….and that no defense attorney, at this time, would be able to help [me].”
Dickey pushed him back down, Burgess said, and walked away. At that point, Robinson “had already typed up some form or whatever, and they presented it to me. And he said this is basic procedure and said for me to sign it,” Burgess said.
Burgess denied that he gave any of the answers in the typed statement. Burgess said he did not read it, but signed it. “He just told me to sign it, and then he said go,” Burgess said.
The defense also called three witnesses who testified that Burgess had a reputation as an honest, church-going man who did not engage in any violent behavior. Among them was Leslie Parker, who had been a coach at schools that Burgess attended. He said he had gotten to know Burgess when Burgess was in the fourth grade. “I have been his teacher, his coach and his friend since that time,” Parker said.
During cross-examination, co-prosecutor James Marshall asked Parker what kind of student Burgess had been. “Wayne was probably a B student; a B or possibly a C, by the time he got to high school.”
During closing argument, Marshall criticized Burgess’s denials that he signed the Miranda warnings waiver and the confession without reading them, and that he signed only because he thought it was “basic procedure.”
“This is a person who is not illiterate,” Marshall said. “He is not stupid. He not only graduated from high school…He went to Martin Methodist College, one of the better liberal arts colleges anywhere around.” Marshall noted that Parker called him a “solid B student, a B or a C student in high school.”
Marshall said that to believe Burgess, jurors would have to believe that the detectives had lied in their testimony. “Does that make any sense?” Marshall asked.
On January 28, 1999, the jury convicted Burgess of first-degree felony murder. He was sentenced to life in prison. His conviction was upheld on appeal.
In September 2022, Tennessee Innocence Project attorneys Jason Gichner and Jessica Van Dyke filed a motion for post-conviction relief. The petition cited new medical evidence from four experts to support the petition:
Dr. Adele M. Lewis, chief medical examiner for the state of Tennessee, reviewed the autopsy report and concluded that based on the amount of blood found in the child, it was “physiologically impossible” for Nakeavia to “suddenly, in a matter of minutes (the supposed time between injury and the onset of unresponsiveness in this case), internally bleed twice their total blood volume…Instead it is more likely that the child sustained the lethal injury hours or even days” before she arrived at hospital.
Dr. Thomas P. Rauth, a pediatric surgeon, said that the injury that Dr. Harlan said was a “fairly significant laceration” was in fact “a low grade, superficial non-penetrating injury.” Nearly 100 percent of these types of injuries are treated without a surgical procedure, Dr. Rauth said. The rate of blood loss is so slow that the body’s natural clotting system usually stops the bleeding, he said. Dr. Rauth said Nakeavia likely died from “severe hypovolemia,” a condition where the body loses a significant amount of fluid or blood which causes the organs to stop functioning and shut down. The girl died because of some prior trauma for which she did not get treatment.
Dr. Brandon Baughman, a neuropsychologist, conducted cognitive testing on Burgess and concluded that his full-scale IQ was 69, placing Burgess in the second percentile. The petition noted that Burgess had been mischaracterized as a B or C student. Had his defense lawyers obtained Burgess’s academic records, they would have seen that in his junior and senior years of high school, Burgess received nine Fs, three Ds, two Cs, and two As [both of these were in physical education]. His college transcript showed he took 11 classes worth 34 hours of credit. He received 5 Fs, two Ds, one C, two C minuses, and one A [in conditioning exercises.].
Dr. Brian L. Cutler, an expert in forensic psychology and false confessions, reviewed the evidence and concluded that Burgess was susceptible to making a false confession, in particular since he was threatened with violence during the interrogation.
The petition cited in painstaking detail the history of Dr. Harlan and how intense investigative scrutiny and disciplinary hearings had revealed bizarre and unsettling findings. In May 2005, following two years of hearings, the State of Tennessee permanently revoked Harlan’s medical license, citing 20 counts of misconduct while serving as Medical Examiner. This was a highly unusual action. Denise McNally, then-director of the National Association of Medical Examiners, remarked “I’ve been doing it 26 years, and I haven’t had a member yet have their license revoked."
The Board of Medical Licensure based its revocation on findings that Harlan had been guilty of five instances of unprofessional conduct, three instances of dishonest conduct, two instances of making false statements, eight instances of negligence, one instance of fraud or deceit involving medical practice, one instance of signing a certificate known to be false, two instances of malpractice, and five instances of incompetence.
The facts bordered on ghoulish: Harlan once replied to a bank’s request for proof of a client’s death that "M.L. is dead. She is green and has maggots crawling on her." In another case, a tenant renting a house from Harlan discovered body parts in a jar and tissue samples in a chocolate box. Harlan’s wife, Gretel, also a pathologist, once explained while testifying that the tissue samples belonged to her two pet dogs upon whom she had performed an autopsy.
In 1993, Davidson County Medical Examiner, Dr. Julia Goodin, had prohibited her office from conducting private autopsies, which had caused a backlog of autopsy cases. Charles Harlan violated this policy and performed private autopsies without permission, for which he was suspended without pay. In 1995, Harlan was barred from the Tennessee Bureau of Investigations crime laboratory and his contract as state medical examiner was terminated, although he retained private contracts with various Tennessee counties.
The petition noted that Harlan had falsified an autopsy report in the 2001 case of James Suttle, who had been accused of first-degree murder. Suttle claimed his cousin, Stevie Hobbs, had suffered a seizure and fallen through a glass table, but Dr. Harlan insisted that Hobbs had been stabbed to death, opining that the stab wounds had occurred shortly before death. Forensic expert Dr. Bill Bass proved that Dr. Harlan's theory was false—the murder weapon would have had to turn at a right angle inside Hobbs's body, a medical impossibility which set Suttle free. This sparked a review of Dr. Harlan's cases that revealed serious misconduct, including:
—Dr. Harlan had falsely identified a body as belonging to an escaped convict, Bruce Allen Littleton, who was discovered alive two years later in connection with another crime.
—Dr. Harlan also determined that two children had died of SIDS when, in fact, a parent had murdered them.
—Dr. Harlan listed a 10-year-old 's cause of death as natural when the child weighed only 18 pounds, a clear case of neglect.
—Dr. Harlan also allowed his dog into the autopsy room on one occasion; the dog consumed some of the remains of a murder victim.
A hearing on the petition was held in March 2023. On April 13, 2023, Giles County Circuit Court Judge David Allen granted the petition and vacated Burgess’s conviction.
The judge cited the “erroneous testimony” of Dr. Harlan and the new medical evidence discrediting Dr. Harlan’s conclusions. “The Court is satisfied that [Burgess] presented clear and convincing new scientific evidence establishing that he is innocent of the convicted offense,” Judge Allen said.
“The theory presented at trial, that Mr. Burgess harmed the child just before presentation at the hospital, is not medically possible,” Judge Allen said. The judge declined to rule on the reliability of the statement signed by Burgess. “The reliability of the statement is immaterial because the new scientific evidence proves Mr. Burgess is innocent.”
On July 25, 2023, the prosecution filed a motion saying it would not retry the case and the matter was effectively dismissed. Burgess was released that day, more than 24 years from the day he was convicted.
In February 2024, Burgess filed a federal civil rights lawsuit seeking compensation for his wrongful conviction.
– Maurice Possley
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