State v. Garrity
| Decision Date | 11 September 2012 |
| Docket Number | No. M2010-02592-CCA-R3-CD,M2010-02592-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. JAY DEE GARRITY |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court of Davidson County
No. 2009-C-2411 Monte Watkins, Judge
Jay Garrity ("the Defendant") was convicted of three counts of aggravated sexual battery, a Class B felony. After a hearing, the trial court sentenced the Defendant as a multiple offender to sixteen years on each count and ordered the sentences to be served consecutively for a total effective sentence of forty-eight years. The Defendant now appeals, arguing that the trial court erred "in allowing the State to call a 'surprise' witness." He also claims that the evidence is insufficient to support his convictions. Finally, the Defendant challenges the length and consecutive service of his sentences. After a thorough review of the record and the applicable law, we affirm the Defendant's convictions. We, however, are compelled to vacate the Defendant's sentence and remand for a new sentencing hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
Affirmed in Part, Reversed in Part, and Vacated in Part; Case Remanded
Michael Colavecchio, Nashville, Tennessee, for the appellant, Jay Garrity.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, State of Tennessee.
Factual and Procedural Background
A Davidson County Grand Jury indicted the Defendant on three counts of aggravated sexual battery. The victim in this case is the Defendant's stepdaughter, B.L.1 The Defendant waived his right to a jury trial and was tried in a bench trial on September 13, 2010.
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, 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 ofcigarettes. 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, 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. testified2 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 hispenis." 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, 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,
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, 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., 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 butreceived 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 ...
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