IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL SESSION, 1999 June 30, 1999
Cecil W. Crowson
CLAUDE FRANCIS ) Appellate Court Clerk
C.C.A. NO. 01C01-9807-CR-00294
GARRETT, )
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
DWIGHT E. SCOTT JOHN KNOX WALKUP
4024 Colorado Avenue Attorney General and Reporter
Nashville, TN 37209
ELIZABETH T. RYAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
JOHN ZIMMERMANN
Assistant District Attorney General
Washington Square, Suite 500
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
REVERSED AND REMANDED
DAVID H. WELLES, JUDGE
OPINION
In 1993 th e Defe ndant, C laude Francis Garrett, was convicted of felony
murder and se ntence d to life impr isonm ent. On direct a ppea l to this C ourt, his
conviction was affirmed, 1 and the Tennessee Supreme Court d enied the
Defe ndan t’s applic ation fo r perm ission to app eal. The Defendant subs eque ntly
filed a petition for post-conviction relief, which was later amended after
appointment of counsel. The trial court denied relief on July 15, 1998. Pursuant
to Tennessee Code Annotated § 40-30-216 and Rule 3(b) of the Tennessee
Rules of Appe llate Proce dure, the Defendant now appeals as of right the trial
court’s denial of post-conviction relief. W e reverse the order of the trial court and
remand for findings of fact and conclusions of law as mandated by statute.
The Defendant presents four issues for our review: (1) whether the State
withhe ld exculpatory evidence from the defense; (2) whether the Defendant
received ineffective assistance of counsel at trial; (3) whether jury misconduct
and bias resulted in a violation of the Defendant’s constitutional rights; and (4)
whether the jury instruction given at trial on “unreasonable doubt” was
unco nstitutio nal.
BACKGROUND
For a complete understanding of the issues involved in this case, we find
it necessary to summarize the events underlying the Defen dant’s co nviction. The
following recitation of facts was compiled from the opinion of this Court on direct
1
State v. Claude Francis Garrett, No. 01C01-9403-CR-00081, 1996 WL 38105 (Tenn.
Crim. App., Nashville, Feb. 1, 1996).
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appeal from th e Def enda nt’s conviction . See State v. C laude F rancis G arrett, No.
01C01-9403-CR-00081, 1996 WL 38105 (Tenn. Crim. App., Nashville, Feb. 1,
1996).
The victim in this case, Lorie Lance, died on February 24, 1992 from
smoke inhalation in a fire that consumed the residence she shared with the
Defe ndant. When firefighters arrived at the scene, the Defendant reported to
them that he had escaped the flame s but th at the vic tim wa s still insid e. He to ld
them he had last seen the victim run toward the back of the house. Firefighters
found her lying unconscious on the floor of the utility room in the rear of the
home. Although the room containe d a doo r which led outside, a ccording to
testimony of police officers at trial, the door was locked from the outside of the
home, and the windows in the room were boarded. The victim was found
wedged between the washer and dryer and the wall. Despite efforts to revive the
victim, she ne ver regain ed con sciousn ess. Th e Defe ndant suffered severe burns
to his left arm and face, and his facial hair was singed in the fire.
An investig ation re vealed that ars on wa s likely the cause of the fire.
Traces of kerosene were found on the living room floor where the blaze arose,
a kerosene-soaked bedspread was found in front of the refrigerator, and a five-
gallon plastic container filled with kerosene was discovered between the kitchen
and utility room. In addition, a smoke detector from which the battery had been
removed was found on the dryer in the utility room. The investigation also
revealed that the door to the utility room inside the home was closed during the
fire. The De fendant’s clothing te sted negative for a cceleran t. An autopsy
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revealed that the victim had a blood alcohol level of .06 percent at the time of her
death.
A neighbor testified at trial that he observed the Defenda nt stooping ne xt
to a tree during the blaze. He stated that when he crossed the road to help, the
Defendant picked up a c hair, began to break the windows of the residence, and
began to call the victim’s nam e. The neigh bor de scribe d the D efend ant’s
demeanor on the night of the fire as “sort of cold.” One firefighter testified that
when he was unable to locate the victim, the Defendant told him, “I know where
she’s at, if you’ll go straight through the back of the house she’s through a back
door, the door in the back of th e hous e by the k itchen.”
A police detective testified that the D efendant ap peared to be nervous
imme diately after th e fire. He stated that the Defendant asked whether he was
under arrest, although he had not yet been accused of starting the fire. He also
pointed out that in sta temen ts to police, th e Defe ndant p resente d two diffe rent
versions of what happened on the night of the fire. However, firefighters who
testified for the defense stated that they had to restrain the Defendant, who
appeared to be intoxic ated, from re-entering his home on the night of the fire.
One testified that the Defendant was beating on the door of the fire truck and
frantically telling the firefighters that the victim was in the bedroom.
When police decided to press charges against the Defenda nt, they were
unab le to find him. They eventually located him in Hiawatha, Kansas. The
Defendant explained that he had go ne there to stay with his mother and claimed
that several people knew how to reach him.
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The Defe ndan t testified that he and th e victim had b een in volved in a
relation ship for one and a half years a nd plan ned to be married. He testified that
on the night of the fire, he and the victim had visited a local bar for several hours.
He stated that they return ed to their residence, watched television, and fell asleep
on the couch be fore getting into bed. Th e Defe ndant re ported th at he aw oke to
the fire, arose, walked to the bedroom door, and called to the victim. He stated
that she grabbed his arm but then pulled away and walked toward the back of the
house .
The Defendant explained that the door to the utility room was not locked,
but mere ly hard to open. He also stated that kerosene was stored in the house
for use in a kerosene heater, and he maintained that he had spilled some
kerosene on more than one occasion while filling the heater. Furthermore, he
claimed that the smoke detector had been taken down while the kitchen was
being painted and that it was inoperable because the victim forgot to buy
batteries for it. Finally, he su ggeste d a cou ple of pote ntial susp ects who he
believed may ha ve started the fire.
Other witnesses at trial described a tumultuous relationship between the
Defendant and the victim. The victim’s supervisor at Uno’s Pizzeria, where she
worked at the time of her death, testified that the victim once came to work w ith
a black eye and marks on her leg and lower back. Another witness testified that
the victim once claimed to have received bruises at the hands of the Defen dant.
A waitress from the bar that the victim and the Defendant visited on the night of
the fire testified that although the victim and the Defendant had not fought that
evening, the victim appeared to be fearful of the Defendant. The Defendant
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admitted that he had “beaten” the victim on three prior occasions. He also
admitted that he had previous ly been co nvicted of g rand the ft, two burglaries, and
a jail escape.
POST-CONVICTION PROCEEDING
At the post-conviction hearing, Detective David Miller, the lead investigator
for the case, testified about a report which he wrote du ring the inve stigation. In
the repo rt, he stated ,
Have contacted Captain Jenkins ab out the positio n of the victim’s
body when located in utility room. According to Captain Jenkins, the
victim was lying parallel to the outside wall, with her head laying
closest to the corner ne ar the washe r and dryer. As best a s Cap tain
Jenkins remembers to us, the door to the storage-utility room, the
door was not locked.
(Em phas is added). At the hearing, Miller claimed to remember “having the initial
conversation” but could not remember any specifics of the conversation aside
from what he had included in his report. He stated that after he wrote the report,
he forwar ded it to the district attorney’s office. It appe ars from the rec ord tha t this
report was not dis close d to de fense coun sel, although we empha size that there
are no findings of fact in the record.
Miller also testified about a toxicology report wh ich conta ined the re sults
of a blood alcohol test performed on the Defendant shortly after the fire. The test
results revealed that the Defendant had a blood alcohol level of 0.11 percent on
the night of the fire. Miller stated that a copy of the toxicology report “should h ave
been” forwarded to the district attorney’s office along with all other reports in the
case.
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Cap tain Otis Jenkins o f the Metro Fire Department next took the stand at
the post-conviction hearing. Jenkins testified that he responded to the fire on
February 24, 19 92 an d was likely the first pers on to discov er the v ictim’s b ody in
the utility room. Contrary to the statement attribute d to him in Dete ctive M iller’s
report, Captain Jenkins stated that the ou tside doo r to the utility room was locked
when he arrived. He reported that he testified at trial that the door was locked
and unequivocally maintained that he could not possibly have been mis taken
about this fact. He stated that he had no m emory of eve r indicating to Detec tive
Miller that the door was unlocked.
Greg Galloway, the Defendant’s attorney at trial, also took the stand at the
post-conviction hearing. He stated that he had been an attorney for twenty-three
years and testified that he believe d this ca se m ay hav e bee n his first mu rder tria l.
He stated that he worke d on th e cas e for ap proxim ately a y ear be fore the trial,
devoting “at least 150 hours” to the case. Galloway estimate d that he s poke w ith
the Defendant approximately six times in person and on the phone on other
occasions. He testified that he and the Defendant discussed the State’s written
response to their discovery request. He further testified that the Defendant sent
him several letters which included witnesses the Defendant believed should be
called to testify at trial. He recalled that he and the Defendant discussed the
witnesses and se ttled on ap proxima tely eight witnesses to be subpoenaed for
trial.
Galloway stated that he sp oke with De tective Miller primarily over the
phone prior to trial and that they discu ssed whe ther the door to the utility room
was locked or unlocked. He stated that Miller “said that as far as his investigation
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revealed, that the door was not locked.” In addition, Galloway testified that he
attempted to speak with C aptain Jenkins and other firefighters present at the
scene of the fire. He maintained that he left messages for them by phone which
were ne ver returne d.
Furthermore, Galloway testified that he sent a discovery request to the
assistant district attorney general handling the case but stated that he did no t file
a copy of the letter with the court. Among the documents provided him by the
State was a diagram of th e hous e which did not inc lude an y indication that a
bedspread was fou nd in front o f the refrigera tor. He sta ted that it was a
“complete surprise to [him] when . . . one of the firemen testified that there was
a blanket o r some thing in fron t of the refrigerator.” Galloway testified that as a
result of his surprise, he did not cross-examine the witness concerning the
diagram because “[i]t didn’t occur to [him] that [the blanket] wasn’t on the diagram
at that point a nd time .” Howe ver, he also admitted that an evidence log which
was turned o ver to him during the discover y proces s listed as o ne of the items
recovered from the scene “[b]ed material, bedspread . . . found at the base of the
refrigerato r.” Galloway pointed out that the evidence log did not mention that the
bedspread had been soaked in kerosene.
Galloway testified that before trial, he spoke with Assistant District Attorney
General Zimmerman, who prosecuted the case, and stated that Zimmerman “led
[him] to believe that he ha d no informa tion indicating the doo r was locked.” He
recalled that he did not prepare a defense to counteract evidence indicating the
door was lock ed. He re ported th at had h e know n the State would introduce
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evidence at trial that the door was locked, he would have “tried to counteract that
some w ay, or find the reason if it was locked.”
Next, Gallowa y conce ded tha t as a resu lt of an “overs ight,” he fa iled to
request “Jencks Act ma terial” after D etective M iller’s testimo ny at trial. He stated
that he the refore had n o acc ess, e ither be fore or during the trial, to Miller’s report
in which Miller claimed Capt ain Jenkins remembered that the outside utility room
door wa s not lock ed.
In addition, Galloway described an incident at trial involving a violation of
the court’s sequestration order. Apparently, a relative of the victim was relating
trial testimony to potential witnesses in the hallway outside the courtroom during
the trial, and for this reason, the trial judge had the pers on taken into cu stody.
Galloway stated that he did not move for a mistrial, explaining, “I just knew that
he was talkin g to potential witnesses, I didn’t know what he said, so I really did n’t
know if it was serious enough to ask for a mistrial, so I didn’t.” He also admitted
that he faile d to make an offer of proof concerning the violation because he
“didn’t think about it.”
Finally, Galloway stated that he was not provided a copy of the toxicology
report containing the results of the Defendant’s blood alcohol tests, which
indicated that the Defendant had a blood alcohol level of .11 percent on the night
of the fire. H e testifie d that h ad he had a ccess to the report before trial, he w ould
have brought this fact to the attention of the jury and u sed th e test re sults to help
explain some of the Defenda nt’s behavior on the night of the fire. He stated,
“[H]e was apparently kneeling or hiding under a tree and not doing anything
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about the fire, or . . . he had n o reac tion to th e fire; he had lo w affec t or he w asn’t
upset enough and th at cou ld expla in it, him being drunk .” How ever, h e did
concede on cross-examination that the Defendant told him before trial that he
was drinking on the night of the fire, and Galloway admitted that he did present
this inform ation to the jury.
Assistant District Attorney Ge neral John Z immerm an next took the stand.
He testified that two diagrams of the residence shared by the Defendant and the
victim were provided to the defense. He stated that neither depicted a bedspread
in front of the refrige rator, but h e also po inted out a nother d ocum ent provid ed to
defense during discovery which contained the following language:
In reviewing the enclosed sketch submitted by Fire Investigator
Kenneth Porter, of the crime scene located 1114 Broadway in Old
Hickory, Tennessee, we find several discrepancies . . . in this sketch
that we feel needs [sic] to be c orrected or discu ssed before placing
this document into the homicide case file. . . . Item Number 6. The
bedspread lying in . . . the kitchen in front of the refrigerator which
was soaked with kerosene is not depicted in the sketch.
He also maintained that the bedspread, which smelled very strongly of an
acce lerant, w as sh own to Gallow ay in the prope rty room before trial.
Zimmerman testified that the toxicology report containing the Defe ndan t’s
blood alcohol level never reached him. He stated that the report reach ed his
office but that the clerk for his office merely filed the report rather than sending
it on. He also testified that he interviewed Captain Jenkins before trial and
spec ifically questioned him about the door to the utility room. He testified that
Cap tain Jenkins denied ever making a statement to Miller that the door was
unlocked. According to Zimmerman, when confronted about the statement
contained in Miller’s repo rt, Jenkins respon ded, “W ell, [Miller’s] wrong, I never
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said that.” Zimmerman maintained that Jenkins’ “me mory was extremely clear,
because he’s th e one who u nlatch ed the door.” Zimm erma n testifie d that h e did
not consider the sta tement to be “exculpatory information” because the
information was incorrect. He stated, “I felt like Detective Miller’s recollection was
vague, he could not specifically remember the co nvers ation h e had with C aptain
Jenkins, and all he knew is what he had recorded in his report, which was
equivoc al, at best, an d Jenk ins was a bsolutely c lear on it.”
The D efenda nt was las t to testify at the p ost-con viction hearing. He
reported that during the time he was out on bond awaitin g trial, a p eriod o f nearly
a year, he did not once converse with Galloway in preparation for trial. In
addition, he sta ted, “W e spo ke on the ph one a coup le of times about some of the
evidence, but we never sat down and discussed any defense, no[t] at all.” He
claimed that although G alloway gave him “some papers,” he “never saw a
response to a disc overy,” nor did they dis cuss the Sta te’s evidence against him.
He stated that he met with Galloway only three times before trial. He testified,
“W e had phon e con versa tions a nd I wo uld jus t ask h im what was going on and
he’d say,