Court of Criminal Appeals of Tennessee, Nashville
Session May 9, 2017
from the Criminal Court for Davidson County No. 2009-C-2411
Monte Watkins, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed, Convictions Vacated, and Case
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.
McGee Ogle, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.
MCGEE OGLE, JUDGE.
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.
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.
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
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
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.
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