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Saitta v. State

Court of Criminal Appeals of Tennessee, Nashville

September 8, 2017


          Assigned on Briefs August 8, 2017

         Appeal from the Circuit Court for Warren County No. F-13783 Larry B. Stanley, Jr., Judge

         The petitioner, Joseph Anthony Saitta, Jr., appeals the denial of post-conviction relief from his Warren County Circuit Court conviction for rape of a child. The petitioner alleges he received ineffective assistance of counsel and that the cumulative effect of trial counsel's errors resulted in the denial of a fair trial. Discerning no error, we affirm the judgment of the post-conviction court.

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

          Susan N. Marttala, Assistant Public Defender, McMinnville, Tennessee, for the petitioner, Joseph Anthony Saitta, Jr..

          Herbert H. Slatery III, Attorney General and Reporter; Alexander Collins Vey, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Tom Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which ROBERT W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.


          J. ROSS DYER, JUDGE

         Facts and Procedural History

         A Warren County Circuit Court jury found the petitioner guilty of rape of a child, and the trial court subsequently imposed a sentence of fifty-eight years in confinement to be served at 100%. On direct appeal, this Court confirmed the petitioner's conviction, and our Supreme Court denied his application for permission to appeal. State v. Joseph Anthony Saitta, Jr., No. M2013-01947-CCA-R3-CD, 2014 WL 4384319 (Tenn. Crim. App. Sept. 5, 2014), perm. app. denied (Jan. 15, 2015). This Court previously recited the following underlying facts:

In July 2012, the Warren County Grand Jury indicted the [petitioner] for rape of a child. The alleged victim was his daughter, who was born on June 30, 2009.
At trial, Sethly Hodges testified that she became a licensed practical nurse in November 2010, began working for CareAll Home Health in April 2011, and was assigned to care for the victim from April to November 2011. The victim, who was two years old in November 2011, was Hodges's only patient. The victim suffered from cerebral palsy, brain damage, scoliosis, and breathing problems; had a feeding tube and tracheostomy; and could not speak. Hodges did not think the victim had clear vision, but the victim could hear. Hodges said that she and another nurse "split" the victim's care, each working twelve-hour shifts, and that she cared for the victim thirty-six to forty-six hours per week. The nurses looked after the victim in her home and "did everything" for her, including changing her diaper, sometimes washing her laundry, bathing her, flushing her feeding tube, and giving her breathing treatments. Usually, one of the victim's parents was present. Hodges said she never had to leave the victim alone with the victim's parents because another nurse always came in at the end of Hodges's shift and "relieved" her.
Hodges testified that at some point, the victim's family lost use of both of its vehicles. The nurses tried to help the family by driving the [petitioner] to work, and Hodges even let the family use her car to run errands. The victim's mother also had a five- or six-year-old son, but he did not live with the family. In November 2011, the victim's mother was scheduled to have visitation with her son for Thanksgiving. The victim's mother did not have transportation, so Hodges drove her to pick up the boy on Tuesday, November 22, 2011. The trip lasted about four hours. While Hodges and the victim's mother were gone, the victim was at home alone with the [petitioner]. Hodges said she was not worried about leaving the victim with the [petitioner] because the victim's mother was not concerned about it. Also, the victim had been left alone with the [petitioner] previously, and the [petitioner] knew how to take care of her. Before Hodges and the victim's mother left for the trip, Hodges checked the victim's diaper and flushed her "trach." The diaper did not need to be changed.
Hodges testified that while they were on the trip, the victim's mother received a text from the [petitioner], stating that the victim had had "a really big, hard bowel movement and he didn't think the nurses were giving her enough water that he was going to give her water." Hodges stated that she had never experienced the victim "being what I would call constipated. There maybe [had] been a day or two that she didn't have a bowel movement but that doesn't necessarily mean that she was constipated." Hodges said that the victim sometimes received Miralax or Benefiber in her feeding tube and that the victim's mother "would kind of switch her back and forth, Benefiber and Miralax and there was discussion that she may have been constipated but as far as when I was there I never saw any -nothing concerned me as far as constipation." Hodges had never seen blood in the victim's stool.
Hodges testified that when she and the victim's mother returned home about 4:30 p.m., she went into the victim's bedroom and immediately smelled the strong odor of a bowel movement. The [petitioner] was lying on the floor in the room but got up and went into the living room, and Hodges began changing the victim's diaper. She said that when she opened it, she noticed blood and "a little bit of discoloration as far as like a little bit of brown but it's not what I would call a bowel movement." Hodges said that she had been expecting a bowel movement in the diaper but that "[t]here was what appeared to be like BM, maybe almost looked like a little bit of diarrhea maybe. . . . [A]nd then there is like slimy stuff. It's all kind of mixed together." Upon seeing the blood, Hodges called for the victim's mother. When the victim's mother came into the room, she inspected the victim's rectum, and they saw that the victim's rectum had been "ripped." Hodges said that the rip was not "front to back" but that it was "a good size rip" and "shocking." Hodges wiped the victim's vagina with a baby wipe but saw no blood. When she wiped the victim's rectum, blood was on the wipe. She stated,
I'm not going to say that it was oozing out but again, whenever she pulled her bottom apart you could see blood up inside of there kind of with the bodily fluids, there was tissue. I didn't just sit there and stare at it because it was very gut wrenching.
Hodges testified that the victim's mother's face "got red, " that both of them were shaking, and that the victim's mother began yelling at the [petitioner]. The victim's mother went to speak with him, and Hodges could hear them "bickering back and forth." The victim's mother wanted to know about the blood and "how did your daughter's bottom get like this." The [petitioner] said he did not know.
Hodges testified that she was panicked, scared, and "thinking the worst." She stated, "I couldn't even, like as a nurse, looking back, I should have looked further at [the victim] but I have a two year old daughter and seeing that was very traumatic." Hodges wanted to telephone her supervisor but was afraid the [petitioner] would hear her and was afraid of what the [petitioner] might do. Therefore, she texted her supervisor about the situation. When her supervisor did not respond, Hodges texted Tracy Martin, the nurse who was supposed to relieve her from her shift. Martin responded that if the victim's condition was as bad as Hodges said, then she needed to take the victim to the hospital. Hodges talked with the victim's mother about taking the victim to the hospital, and the [petitioner] stated that if they did so "they're going to think [he] did it."
Hodges testified that she noticed the trash can by the victim's bed had been emptied and that she told the victim's mother that the diaper the [petitioner] had changed was not there. The victim's mother left the room and returned with the diaper. Hodges said the victim's mother also had paper towels with blood "all over them." They opened the diaper but saw no blood in it. Hodges said that "mushy" stool was in the diaper but that the amount of stool "wasn't huge" and that she saw nothing concerning about the stool. She said the bloody paper towels were "kind of pink in some places . . . slimy, if you will" and appeared to have bodily fluid on them. The State asked Hodges if she recognized the fluid, and she said that she thought it was semen. She said the nurses never used paper towels to clean the victim after a bowel movement. They always used baby wipes.
Hodges testified that she and the victim's mother decided to take the victim to the emergency room (ER) but did not let the [petitioner] know what they were doing. They put the diaper that Hodges had taken off the victim, the diaper that the [petitioner] had changed, and the bloody paper towels into a bag and put the bag in Hodges's purse. On the way to the hospital, Hodges and the victim's mother agreed to say the victim's condition occurred when Hodges "ran [the victim's mother] down to the Dollar General." Hodges said that when they arrived at the ER and spoke with the triage nurse, the victim's mother "was a completely different person" and told the nurse that the victim "had been dealing with some constipation problems and that there was a little blood in her feces." Hodges said that the victim's mother's statement was "[a]bsolutely not" consistent with what Hodges had seen but that Hodges did not say anything to the triage nurse. She said that the victim's mother "didn't let me do a whole lot of talking" but that "I did try to stress the severity of the rip." The victim's mother did not tell the nurse about the bloody paper towels or the blood in the diaper that the [petitioner] had changed.
Hodges testified that her shift ended at 7:00 p.m. and that Martin arrived at the hospital to relieve her. Hodges spoke with Martin in the parking lot, "tried to stress to her the severity of the tears, " and gave her the bag that contained the diapers and paper towels. Hodges said that when she got home, she telephoned the hospital, spoke with the nurse caring for the victim, and told the nurse that she thought "they should investigate further because [she] thought there was a little more going on that [the victim's] mother hadn't made them aware of." Hodges also began having second thoughts about lying to her supervisor regarding the amount of time she had been away from the victim that day. Hodges had told her supervisor that she and the victim's mother had gone to the store. Hodges said she did not tell her supervisor about the four-hour trip because she was afraid of losing her job and her nursing license. However, she decided "to come clean . . . for [the victim's] sake." The next morning, she went to CareAll and told her supervisor about the trip, and CareAll fired her. Hodges went to the sheriffs department and spoke with Investigator Kelly Carter.
On cross-examination, Hodges acknowledged that a laxative or fiber supplement was a routine part of the victim's care and that the victim had to have them. She also acknowledged that the victim's physician had prescribed Miralax or Benefiber to the victim and had switched the victim from one to the other. At the time of this incident, the physician had switched the victim back to Benefiber. The [petitioner] had very little to do with the victim. In fact, neither of the victim's parents had much to do with her care because the nurses always took care of her. During the four-hour trip, Hodges and the victim's mother stopped at the home of Hodges's boyfriend in Smithfield to get money for gas. When they returned to the victim's mother's home after the trip, Hodges saw blood in the victim's diaper. Defense counsel asked Hodges about the amount of blood, and she stated, "I mean it wasn't just like covered in blood but there was spots of blood, smears of blood."
Hodges acknowledged that as part of her duties, she made notes about the victim throughout her shifts. On November 22, 2011, Hodges made her notes after she left the ER. Defense counsel showed Hodges her notes, and she acknowledged that she wrote that blood "'appear[ed]'" to be in the victim's diaper. She said she was sure she saw blood. She acknowledged that a child could have a large bowel movement with blood in the stool. She described the tear to the victim's rectum as large and "straight up and down" but said, "I looked away from it to be completely honest because it startled me." The paper towels were not saturated with blood, but "there was a lot of smeared blood on them." The blood appeared to be mixed with semen but Hodges could not say for sure whether the fluid was semen or some other bodily fluid. Defense counsel asked why she thought the fluid was semen, and she stated, "I guess because she was torn and that's the first thing that entered my mind." She acknowledged that although she was scared for the victim on November 22, she did not show the diapers or paper towels to the hospital staff. She said that she regretted that decision every day and that she and the victim's mother thought the [petitioner] had done something to the victim. Hodges acknowledged that the ER physician diagnosed the victim with constipation. Hodges said she thought the hospital staff "didn't check her out thoroughly because they weren't led in the right direction to check her out thoroughly." She acknowledged that she did not know the [petitioner] harmed the victim.
On redirect examination, Hodges testified that what she saw in the diaper did not match the [petitioner's] description in his text message. She acknowledged that, given the physician's diagnosis of constipation, she could have decided not to reveal anything to her CareAll supervisor. However, she stated,
As a human being I felt like - and also I have a daughter that is the same age and seeing [the victim] the way that I saw her in the condition that she's in it was horrifying and I truly felt like I had to go further with it for [the victim's] sake. Yes, I didn't feel that he went far enough as investigating what was wrong with her.
Tracy Martin testified that she became a licensed practical nurse in June 2005 and was involved in the victim's care through CareAll from June or July 2011 until November 22, 2011. The victim could not communicate, sit, or roll over but responded to loud noises. When the victim was in pain, she was fidgety, moved her arms, and sometimes produced tears from her eyes. Martin spent at least thirty-six hours per week with the victim, usually working twelve-hour shifts, and her care of the victim included respiratory treatments, rotating splints on the victim's hands and feet, exercising, bathing, and administering medications. The victim's parents also knew how to care for the victim and changed the victim's trach tube, which the nurses were not authorized to do. The victim's mother was very active in her care and instructed the nurses. The [petitioner] changed the victim's trach when it needed to be changed, but Martin did not see him often and did not have much interaction with him. Besides Martin and Sethly Hodges, other nurses also provided care for the victim.
Martin testified that on November 22, 2011, she was supposed to care for the victim from 7:00 p.m. to 1:00 a.m., which was a short shift. About 5:00 p.m., Hodges texted Martin that she was scared something had happened to the victim. Hodges later telephoned Martin and told her what was happening. Martin told Hodges to notify CareAll and take the victim to the ER if Hodges had any question about the victim's condition. Martin thought CareAll told Hodges to take the victim to the ER, and Martin reported to the ER for duty.
Martin testified that when she arrived at the hospital, the victim, the victim's mother, the [petitioner], and Hodges were sitting in the waiting room. The victim's mother asked Martin to drive the [petitioner] to work, so Martin drove him to Calsonic. During the drive, the [petitioner] asked Hodges if constipation could have caused the victim's "problems." He also told Martin to tell the victim's mother "that constipation causes that." Martin said she thought the [petitioner's] statements were "very odd." When she returned to the ER, the victim and the victim's mother were still in the waiting room. Hodges and Martin went to get some things out of Hodges's car, and Hodges reported to Martin what had happened. While Hodges and Martin were outside, the victim's mother texted or telephoned Martin, asked what they were doing, and told Martin that she needed to get back inside. Martin took the victim's car seat out of Hodges's car, and Hodges gave her a white plastic bag containing diapers and paper towels. Hodges told Martin that the items in the bag were from the victim and that Martin needed to take them. Martin saw the paper towels and described them as "kind of pink-tinged like blood-body fluid mixture but it was dried." She said that the blood was smeared and that the bodily fluid looked like semen. Martin put the plastic bag in her car and returned to the ER. She did not open the diapers.
Martin testified that when she and the victim's mother met with the ER doctor, the victim's mother told him that they were there due to "[c]onstipation, a recent med change from Miralax to Benefiber and some blood in [the victim's] stool." All Martin knew was what Hodges had told her, but the victim's mother's statement to the doctor was inconsistent with Hodges's version. Martin said that constipation was "not a big concern" in her care of the victim and that "I don't recall ever seeing her have a really hard bowel movement." However, Martin had seen the victim have difficulty passing formed stool. Martin had never seen blood in the victim's stool or anal fissures on the victim. The victim took Miralax and Benefiber for constipation and had been switched from one to the other. When the switch occurred, Martin did not notice any changes in the victim's bowel movements.
Martin testified that when the victim's mother took off the victim's diaper for the ER doctor, Martin saw "a very small amount of red, I'm assuming was blood and there was some brownish-yellowy spots on her diaper that looked almost like liquid stool and a little bit of slime." She said that the doctor looked at the victim's "bottom" as if he was changing her diaper, "holding the legs up just kind of glancing." He did not look closely at the victim's rectum. The victim also had an abdominal x-ray. The doctor told them that the victim had a small amount of stool in her upper intestinal tract and to continue with the victim's fiber regimen at home. After the victim was discharged from the hospital, Martin drove everyone home. The victim was exhausted, and Martin got her ready for bed. Meanwhile, the victim's mother changed the victim's bed linens because "[t]here was little droplets of blood in a few places and there was some smeared stool on the sheet and the body pillow." The victim was wearing only a shirt, and Martin changed her into her bed clothes. Martin said she thought the shirt was put into the laundry basket.
Martin testified that the white plastic bag containing the diapers and paper towels had been in the backseat of her car and that "I know that [the victim's mother] took them out of my vehicle but I don't know where they went past that." The next morning, Martin stopped by CareAll to turn in some paperwork. Hodges was there and "kind of distraught about everything that [had] happened." Hodges was upset because she thought nothing had been done about the situation and talked about going to the sheriffs department. Later that day, Martin met Hodges there, and they spoke with Investigator Kelly Carter.
On cross-examination, Martin testified that she did not work with the victim after November 22 because the victim's mother telephoned CareAll and asked that she not return. She said that when she and Hodges went outside at the hospital, Hodges first showed her the items in the white plastic bag and then explained what had happened. Hodges asked for Martin's opinion about the bodily fluid on the paper towels, and Martin thought the fluid was semen. Martin said she had seen semen previously and was basing her opinion on personal and professional experience. Hodges also thought the fluid was semen. Martin acknowledged that Hodges was concerned the [petitioner] had perpetrated some act on the victim. Martin said she did not reveal Hodges's concern to the ER staff because she did not have any first-hand knowledge "other than seeing the paper towels." Also, Hodges had agreed to call the ER and "give them a report on what had happened under her watch." Martin was present when the ER doctor stated his findings, and Martin was concerned that the doctor's findings were not consistent with what had actually happened. Nevertheless, Martin did not say anything to the doctor. The next day, Hodges and Martin met with Investigator Carter together but wrote their statements separately.
On redirect examination, Martin testified that she saw the victim's rectal area when the ER doctor raised the victim's legs and that "you could see a tear below her rectum maybe that size. You could see it running down from her rectum." Martin demonstrated the length of the tear for the jury and acknowledged that it was about one inch. She did not examine the victim's rectal area when they returned home on November 22. Martin said she changed the victim's diaper but "didn't go any further than rinsing her with water because she was obviously in pain."
Investigator Kelly Carter of the Warren County Sheriffs Department testified that he learned about the case on November 23, 2011, and spoke with Sethly Hodges and Tracy Martin. He acknowledged that they gave statements to him that were consistent with their trial testimony. Alicia Cantrell from the Department of Children's Services (DCS) was assigned to the case, and she and Investigator Carter went to the victim's home on the afternoon of November 23. The victim, the victim's parents, the victim's half-brother, and a home health ...

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