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Garner v. State

Court of Criminal Appeals of Tennessee, Jackson

April 18, 2017

MITCHELL GARNER
v.
STATE OF TENNESSEE

          Assigned on Briefs September 7, 2016

         Appeal from the Criminal Court for Shelby County No. 07-02157 Glenn Ivy Wright, Judge.

         The Petitioner, Mitchell Garner, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his conviction of aggravated sexual battery and resulting twelve-year sentence. On appeal, the Petitioner claims that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

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

          Joseph A. McClusky, Memphis, Tennessee, for the appellant, Mitchell Garner.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and David M. Zak, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         At trial, the victim testified that in December 2007, she was a prostitute. State v. Mitchell Garner, No. W2008-01333-CCA-R3-CD, 2010 WL 571793, at *1 (Tenn. Crim. App. at Jackson, Feb. 18, 2010). In the early morning hours of December 17, the victim left the motel room she was sharing with her boyfriend in order to obtain crack cocaine. Id. She was not working as a prostitute at that time. Id. The Petitioner, who was a large, African-American male, called to the victim from his semi-trailer truck, which was parked in an empty parking lot across from the motel. Id. He got out of the truck and talked with the victim in the lot. Id. The Petitioner wanted "'a date'" for $30. Id. When the victim refused, he grabbed her, wrestled her to the ground, and started beating and choking her. Id. The victim pulled out a pocketknife she carried for protection, but the Petitioner took it and cut her wrist and mouth. Id. He also pulled down her pants and penetrated her vagina with his fingers. Id. The victim said that she repeatedly "'went out'" due to the choking and that she did not know if he penetrated her with his penis. Id. The attack lasted for hours and ended when a police officer pulled over someone near the truck. Id. On cross-examination, the victim denied telling police that a white man was in the passenger seat of the truck and said that she did not see anyone other than the Petitioner. Id.

         A police officer testified that he stopped a motorist nearby, heard the victim screaming, and found her naked and covered in blood. Id. at *2. He ordered the Petitioner out of the truck at gunpoint and saw that the Petitioner had blood on his shirt and pants and scratches on his face. Id. at *2. The Petitioner offered several different explanations for what had happened to the victim, including that she tried to rob him and that he defended himself. Id. After the officer handcuffed the Petitioner, he noticed that Chad Harris, who was white, was in the truck's passenger seat. Id. A second officer who arrived on the scene noticed that the truck had a broken window. Id.

         The victim spent eleven days in the hospital, including four days in the intensive care unit. Id. at *1, 2. A forensic nurse testified that the victim had injuries all over her body and that blood was in her vaginal area, which was consistent with digital penetration. Id. at *3.

         A police officer spoke with the victim at the hospital in the early morning hours of December 17 and testified that she told him "'a white person had stopped and offered her money for sex; when she refused to perform the sex act, that she was attacked.'" Id. at *2. However, the victim told another officer the day after the attack that the Petitioner penetrated her with his fingers, that he attempted to penetrate her with his penis, and that no one else was involved. Id. at *3.

         Forensic testing revealed that the victim's DNA, but not the Petitioner's DNA, was on the bloody pocketknife. Id. Blood with the victim's DNA also was on two shirts the Petitioner was wearing at the time of the attack. Id. Vaginal swabs ...


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