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Garrity v. State

Court of Criminal Appeals of Tennessee, Nashville

February 22, 2018


          Session May 9, 2017

         Appeal from the Criminal Court for Davidson County No. 2009-C-2411 Monte Watkins, Judge.

         The Petitioner, Jay Dee Garrity, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his convictions of three counts of aggravated sexual battery and resulting effective forty-eight-year sentence to be served at 100%. On appeal, he contends that he is entitled to a new trial because trial counsel was presumptively ineffective under United States v. Cronic, 466 U.S. 648 (1984). In the alternative, he contends that he received the ineffective assistance of counsel under the usual Strickland standard. Based upon the oral arguments, the record, and the parties' briefs, we conclude that the Petitioner received the ineffective assistance of trial counsel under Strickland. Therefore, the judgment of the post-conviction court is reversed, the judgments of conviction are vacated, and the case is remanded for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed, Convictions Vacated, and Case Remanded

          Jessica Marie Van Dyke, Nashville, Tennessee, for the appellant, Jay Dee Garrity.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.



         I. Factual Background

         This case arose from reports that the Petitioner sexually abused his stepdaughter, B.L., while they lived in Nashville from 1996 to 1999. The family moved to Oklahoma in 1999, and the Petitioner and the victim's mother separated in 2003. The victim revealed the abuse to her mother in June 2006 and to Oklahoma police in 2007.

         In August 2009, the Davidson County Grand Jury indicted the Petitioner for three counts of aggravated sexual battery of a child less than thirteen years old, a Class B felony. The indictment alleged that the offenses occurred more than ten years earlier, between August 1, 1997, and March 1, 1999.

         On September 13, 2010, the Petitioner signed a written waiver of his right to a jury trial, and the trial court proceeded with a bench trial. In its direct appeal opinion affirming the Petitioner's convictions, this court gave the following factual account of the trial:

During the State's opening statement, defense counsel objected to the State discussing the possible testimony of a family member named Betty Sue Blalock. Defense counsel claimed that the State failed to adequately inform the defense about the identity of this witness and the information to which she might testify. The State responded,
Judge, respectfully, that is a completely disingenuous statement of the facts. I told [defense counsel] probably two months ago about this witness. I gave him her name as I knew it at the time. I asked[ ] Mr. Halstead to add her to the indictment. And I told [defense counsel] precisely last week exactly what she would be testifying to, that she would be here this weekend if he wanted to talk to her.
Defense counsel responded that he received the witness's name only the week before trial. Because of the short notice, defense counsel asserted that he did not have sufficient time to investigate possible attacks to her credibility. The trial court stated, "I am going to allow the [State] to continue on with her opening statement. . . . I'll allow you the opportunity to speak with this potential witness." Defense counsel acknowledged that the State already had given him the opportunity to meet with the potential witness prior to the start of the trial.
The mother of the victim ("Mother") testified at trial that the Defendant is her ex-husband. She married the Defendant in 1993 and divorced him approximately one year before trial. In 1996, Mother and the Defendant moved from Oklahoma to Nashville along with her son, S.R., and daughter, B.L. While in Nashville, Mother's job kept her from being able to pick up the kids from school. As a result, S.R. would ride the bus home, and the Defendant would pick up B.L., who was six years old in 1996. Over time, Mother noticed that the Defendant spent more time with B.L. and seemed to push S.R. away. The Defendant took B.L. with him anywhere he went, even if he only was going out to buy a pack of cigarettes. This behavior continued once the family moved back to Oklahoma in 1999. Most nights, when Mother returned home, S.R. would be out playing with friends, and the Defendant and B.L. would be alone together.
Mother stated that while living in Nashville her brother stayed with her family for approximately a month. When her family moved back to Oklahoma in 1999, her brother lived with her family again for an extended period of time.
During the latter part of their time in Nashville, they lived in the Burning Tree Apartments. Mother and the Defendant shared a room and bathroom, and each of the kids had their own bedroom and shared a bathroom. Mother and the Defendant separated in 2003. Around 2006, Mother tried to locate the Defendant for the purpose of finalizing their divorce. As she searched the internet, something caught her attention, and the thought struck her that the Defendant possibly had sexually abused B.L. When Mother picked up B.L. from school later that day, she asked B.L. if the Defendant ever had touched her or acted inappropriately. Mother stated, "[B.L.] turned her head and looked out the window and was quiet. And when she turned back around, tears were just streaming, and she said yes." Mother pressed B.L. for more information, but, initially, B.L. was reluctant to provide details. Sometime in the next six months, Mother received a phone call from the Defendant. Mother and B.L. picked up two different receivers, and Mother "told him [she] knew what he did." According to Mother, the Defendant responded, "[B.L.] is a liar." The Defendant also claimed that it was Mother's brother and not him who was responsible. After this phone conversation, Mother initiated criminal charges against the Defendant in Oklahoma.
B.L.[, who was twenty years old at the time of trial, ] testified that when they were living in Nashville, she had learned a saying at school: "Chinese, Japanese, dirty knees, look at these." She had gotten in trouble for repeating the saying to Mother and the Defendant. Approximately a week later, the Defendant picked up B.L. from school and asked her to repeat the saying that she had learned. He asked her to lift up her shirt, and he proceeded to touch her breasts. B.L. stated that this occurred in their living room. The Defendant later told her that her saying that phrase gave him the idea to touch her, and, accordingly, she felt responsible for his actions. On a different occasion, the Defendant lifted B.L.'s shirt and touched her breasts after calling her into his bedroom to take a "nap." According to B.L., he also "unzipped his pants and pulled them down" and "touch[ed] his genitals." She testified that his touching her breasts happened "repeatedly" or "almost every day." On a third occasion, the Defendant asked her to come into the bathroom. He already was in the bathroom with the door closed. When she entered, she realized that he was naked. He put his hand on hers and "had [her] rub his penis." In all the instances that occurred in Nashville, she did not remember the Defendant ejaculating.
B.L. testified that the Defendant continued to touch her breasts and masturbate after they moved from Nashville until she was thirteen years old. Initially, B.L. stated that she and the Defendant were always home alone when the Defendant would touch her. On cross-examination, however, she remembered one instance in which the Defendant touched her in his bedroom while family members were in the kitchen.
B.L. stated that the Defendant warned her not to tell anyone or that he would say it was B.L.'s uncle or brother. B.L. also was afraid that her mother would not believe her. Thus, she didn't tell Mother until she was fifteen years old. She stated, "She had picked me up from school, and we were on our way back to her job. And she had asked me again if [the Defendant] had ever touched me. And I stood silent for a couple of minutes, and then I finally said yes. And then she just started crying." B.L. also testified about the time that the Defendant called the house after she told her mother of his touching her. According to B.L., Mother said, "I know what you did to her, " and the Defendant responded, "Did what? I didn't do nothing. It was [your brother]."
The State called Betty Sue Blalock to testify. The defense renewed its objection regarding the trial court allowing this witness to testify. Defense counsel stated, "I did get an opportunity to speak with [Blalock], Your Honor. I've had absolutely no opportunity to do anything else, what I would normally do with a witness if I knew the information." The trial court responded, "I am going to allow her to testify if you've had an opportunity to speak with her."
Blalock testified that she is related to Mother by marriage. She lives in Oklahoma near the area where Mother now lives. She remembered visiting Mother on one occasion when Mother and her family lived in Nashville. She was sitting at the kitchen table with B.L., the Defendant, Blalock's husband, and Mother's brother. According to Blalock, the Defendant said to B.L., "Come on, [B.L.], it's time to take a nap. Come on, you've got to take a nap." Blalock asked the Defendant why B.L. needed to take a nap. The Defendant responded that they would not be able to stand being around B.L. if she didn't take a nap. Then the Defendant and B.L. went into the Defendant's bedroom and closed the door. Blalock believed that B.L. was approximately eight years old at that time. Neither Mother nor S.R. were at home when this incident occurred.
Detective Rachel Black, Metro Police Department sex crimes division, testified that she became involved in the investigation of this case following reports provided by a police department in Oklahoma. Detective Black requested the case file from Oklahoma but received only a summary sheet of less than one page and a video containing a forensic interview of B.L.

         The State submitted the following as its election of offenses:

Count 1 Aggravated Sexual Battery - refers to the first incident the victim can recall of the defendant fondling her breasts shortly after she'd been punished for reciting the rhyme "Chinese, Japanese, Dirty knees, Look at these." This incident occurred in the living room in the ...

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