Court of Criminal Appeals of Tennessee, Nashville
August 12, 2014 Session
Direct Appeal from the Circuit Court for Rutherford County No. F-70207 Robert Corlew, III, Judge
Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and Laural Nutt Hemenway, Assistant District Attorney General, for the appellee, State of Tennessee.
G. Jeff Cherry, Lebanon, Tennessee, for the appellant, Marty Joe Kelley.
Norma McGee Ogle J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
We glean the following relevant facts from this court's opinion of the Petitioner's direct appeal of his convictions: In December 2006, the Rutherford County Grand Jury issued a 33-count indictment, charging the Petitioner with numerous sexual offenses involving the minor victim, who was his girlfriend's daughter and lived with him from the age of five until December 2006 when she was sixteen. See State v. Marty Joe Kelley, No. M2010-02318-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 548, at **4-5, **6-7 (Nashville, July 12, 2012). In November 2008, the grand jury issued a fifty-eight-count superseding indictment, charging the Petitioner with six counts of rape of a child, three counts of aggravated sexual battery, nine counts of rape by force or coercion, nine counts of rape without consent as an alternative theory to rape by force or coercion, twenty-eight counts of especially aggravated sexual exploitation of a minor, two counts of soliciting sexual exploitation of a minor, and one count of sexual exploitation of a minor. Id. at *5.
At trial, the then eighteen-year-old victim testified that her mother and the Petitioner began a relationship when she was one year old and that the Petitioner began abusing her when she was five years old. Id. at *6. The victim testified about multiple incidents of sexual abuse that including his "'humping'" her while she was lying naked on his bed; forcing her to perform oral sex on him; performing oral sex on her; "'pushing on [her] vagina'" with his penis in attempts to have sexual intercourse with her; taking nude photographs of her; and forcing her to expose herself on a computer webcam. See id. at **7-16. In December 2006, the victim revealed the abuse to the police and a pediatric nurse practitioner from the Our Kids Center. See id. at **18-19. During an investigation of the case, a special agent with the Tennessee Bureau of Investigation (TBI) analyzed the victim's laptop computer and a desktop computer seized from the Petitioner's home. Id. at * 20. The agent found twenty-eight photographs of the victim on her laptop but "nothing of importance" on the desktop. Id.
The victim's half-brother, who was the Petitioner's son and in the fourth grade at the time of trial, testified that he saw the Petitioner use a webcam on the victim while she was wearing a bikini and that he saw the Petitioner "do this 'a lot.'" Id. He also saw the Petitioner "'get on top of the victim while wearing no clothing." Id. The victim's mother testified that she and the Petitioner had a twelve-year relationship and that they had two children together, both of whom were younger than the victim. Id. at *21. The victim's mother said that the victim first told her about the abuse when the victim was about fourteen years old. Id. The victim's mother confronted the Petitioner, but he denied the allegations. Id.
The Petitioner did not testify but presented witnesses to testify about his reputation and his relationship with his children and the victim. See id. at **21-23. He also presented an expert witness to testify about the hard drive on the victim's laptop computer. Id. at *23.
At the conclusion of the proof, the jury convicted the Petitioner of rape of a child, a Class A felony in counts 1 through 6; aggravated sexual battery, a Class B felony, in counts 7 through 9; rape by force or coercion, a Class B felony, in counts 10 through 18; especially aggravated sexual exploitation of a minor, a Class B felony, in counts 31 through 34, 36 through 39, 41 through 44, 49, 50, 51, 53, 54, and 56; and soliciting sexual exploitation of a minor, a Class B felony, in counts 57 and 58. Id. at *24. The trial court dismissed counts 19 through 27 for rape without consent,  and the jury found the Petitioner not guilty of the remaining counts. After a sentencing hearing, the Petitioner received an effective sentence of thirty-nine years to be served at 100%. Id. at *25.
The Petitioner appealed his convictions to this court, raising numerous issues, including that the evidence was insufficient to support four of his child rape convictions; that the trial court improperly allowed the State to refer to the victim as "the victim" throughout the trial; that the trial court erred by repeatedly allowing the State to introduce prejudicial hearsay into evidence; and that the trial court improperly enhanced his sentences. See id. at *2. This court concluded that the State improperly elected facts for one of the Petitioner's child rape convictions, reversed that conviction, and remanded the case for a new trial as to that count. Id. at **62-62. This court also concluded that the Petitioner waived his claim regarding the State's references to "the victim" and most of his hearsay claims for failing to object. Id. at **26-27, 51-52. Finally, this court concluded that the trial court improperly enhanced the Petitioner's sentences for rape of a child pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and modified his remaining sentences for that offense from twenty-three to twenty years, reducing his effective sentence to thirty-six years in confinement. Id. at **76-77.
The Petitioner did not file an application for permission to appeal to our supreme court. However, counsel filed a timely petition for post-conviction relief, alleging, in relevant part, that the Petitioner received the ineffective assistance of counsel at trial because counsel (1) informed the jury of "a multitude of facts" during opening statement but failed to establish those facts through cross-examination of the State's witnesses or by having the Petitioner testify; (2) failed to object to "five separate instances of hearsay, " thereby waiving the issue on ...