State of Tenn. v. HESTER

• Decision Date: 05 October 2010
• Docket Number: No. E2006-01904-SC-DDT-DD.,E2006-01904-SC-DDT-DD.
• Parties: STATE of Tennessee v. H.R. HESTER.
• Court: Tennessee Supreme Court

324 S.W.3d 1

STATE of Tennessee

v.H.R. HESTER.

No. E2006-01904-SC-DDT-DD.

Supreme Court of Tennessee,at Knoxville.

May 5, 2010 Session.

Oct. 5, 2010.

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Rich Heinsman and Lee Davis, Chattanooga, Tennessee, for the appellant, H.R. Hester.

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Senior Counsel; and James E. Gaylord, Assistant Attorney General; R. Steven Bebb (on appeal) and Jerry N. Estes (at trial), District Attorneys General; and William W. Reedy, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and SHARON G. LEE, JJ., joined.

WILLIAM C. KOCH, JR., J.

This appeal involves a defendant who bound up two victims, doused them with kerosene, and then set them on fire because one of the victims had refused to loan him ten dollars to buy beer. One of the victims lost his life in the ensuing fire. A McMinn County grand jury indicted the defendant for first degree murder, attempted first degree murder, and aggravated arson. A jury found the defendant guilty on all counts. During the sentencing phase of the trial, the jury, finding the existence of the aggravating circumstances in Tenn.Code Ann. § 39-13-204(i)(5) and (14) (Supp.1999), sentenced the defendant to death for the murder of the victim who died in the fire. Thereafter, the trial court sentenced the defendant to consecutive sentences of twenty-five years for attempted first degree murder and twenty years for aggravated arson. The Court of Criminal Appeals affirmed the defendant's convictions but reduced his twenty-five year sentence for attempted first degree murder to twenty years because the trial court had considered improper enhancing factors. The Court of Criminal Appeals also determined that the trial court had erred by excluding mitigating evidence offered by the defendant during the sentencing phase of the trial but that this error was harmless. After conducting its own comparative proportionality review, the Court of Criminal Appeals concluded that the defendant's sentence of death was proportionate to punishments imposed in similar cases. State v. Hester, No. E2006-01904-CCA-R3-DD, 2009 WL 275760 (Tenn.Crim.App. Feb. 5, 2009).

We hold as follows: (1) the manner in which the district attorney general gave notice of the State's intention to pursue the death penalty was not improper; (2) the defendant was not denied his right of self-representation; (3) the trial court did not err by denying the defendant's request for a continuance filed eight days before the trial; (4) the defendant failed to establish a prima facie case that the process used to select the jury venire deprived him of his right to select a jury from a fair cross-section of the community; (5) the defendant failed to make the necessary pretrial objections to raise an argument that the jury selection procedures violated Tenn.Code Ann. § 22-2-304(e) (1994) and has failed to demonstrate any prejudice that he suffered from any violations thereof; (6) the trial court did not err by denying the defendant's request to retain an expert statistician; (7) even assuming two of McMinn County's jury commissioners were not statutorily qualified for their positions, Mr. Hester suffered no resulting prejudice; (8) the trial court did not commit reversible error with regard to its decisions relating to the admission or exclusion of evidence; (9) the trial court did not improperly comment on the evidence; (10) the trial court's instruction on reasonable doubt was not erroneous; (11) the trial court did not err when it replaced a juror during the sentencing phase of the trial; (12) the record contains sufficient evidence of premeditation; (13) the defendant's due process rights were not infringed by the denial of compulsory process, the trial judge's failure to recuse himself sua sponte, or the manner in which the trial court considered his motion for new trial; (14) the defendant is not entitled to a reversal of his conviction and sentence because of the cumulative effect of errors during the entire proceeding; and (15) the defendant's multiple challenges to Tennessee's death penalty statutes and the procedures and the protocol for carrying out the death penalty are without merit.

Finally, in accordance with our obligation under Tenn.Code Ann. § 39-13-206 (2006), we have thoroughly reviewed the record and have determined: (1) that the defendant's sentence of death was not imposed in an arbitrary fashion; (2) that the evidence fully supports the jury's finding of the existence of the aggravating circumstances in Tenn.Code Ann. § 39-13-204(i)(5) and (14); (3) that the evidence supports the jury's finding that these aggravating circumstances outweigh the mitigating circumstances presented by the defendant; and (4) that the defendant's death sentence, taking into consideration the nature of the offense and the defendant himself, is neither excessive nor disproportionate to the penalty imposed in similar cases. We have also independently determined that the defendant should receive two twenty-year sentences for his convictions for attempted first degree murder and aggravated arson and that these sentences should be served consecutively with each other and with the defendant's death sentence. In all other respects, the judgment of the Court of Criminal Appeals, as modified by this opinion, is affirmed.

I. The Crimes

Dora Mae Hester and Harold Roy Hester ¹ married in 1992. The marriage ended by mutual agreement after only six months following a particularly violent domestic abuse incident. They had no children. Even though their marriage was dissolved, Ms. Hester and Mr. Hester remained in contact with each other and continued an on-again-off-again relationship.

Ms. Hester met Charles Mitchell Haney, a 74-year-old widower, in 1996. They became friends, and Ms. Hester began to stop by Mr. Haney's apartment to assist him with the household work. In 1997, Ms. Hester agreed to help Mr. Haney care for himself and to maintain his apartment on a more regular basis. In 1998, when Mr. Haney became concerned about being required to move into a nursing home, Ms. Hester and Mr. Haney decided to change their living arrangements in order to enable Ms. Hester to become Mr. Haney's full-time caregiver.

Ms. Hester owned a tract of land and was living in a camper on that property. She had also permitted one of her daughters to place her mobile home on the same property. Mr. Haney purchased a two-bedroom mobile home and had it placed on Ms. Hester's property, approximately twenty-five feet from the other mobile home. He moved into one of the bedrooms, and Ms. Hester moved from the camper into the other bedroom which was on the opposite end of the mobile home.

Ms. Hester used Mr. Haney's automobile for their errands, for Mr. Haney's appointments, and for any of her other personal needs. They also pooled their financial resources, ² and Ms. Hester became Mr. Haney's live-in caregiver. Ms. Hester cooked Mr. Haney's meals, washed his clothes, assisted him with bathing, and drove him for errands and appointments with doctors. Mr. Haney's mobility was limited, and he was required to use a walker. Accordingly, Ms. Hester also helped Mr. Haney move about the mobile home.

After Ms. Hester moved into Mr. Haney's mobile home, Mr. Hester expressed an interest in purchasing her camper. Ms. Hester permitted Mr. Hester to live in the camper while he was deciding whether to purchase it. After the camper was destroyed by fire, Mr. Hester moved into an apartment. However, he was forced to move out of the apartment when he could not afford to pay the rent. Because Mr. Hester was faced with imminent homelessness, Mr. Haney and Ms. Hester invited him to stay with them in the mobile home.

Thus, beginning in 1999, Mr. Hester moved into the mobile home with Mr. Haney and Ms. Hester. He slept in Ms. Hester's bedroom and, on occasion, had sexual relations with Ms. Hester. Mr. Haney and Ms. Hester paid for Mr. Hester's food and cigarettes, and Ms. Hester washed Mr. Hester's clothes. Mr. Hester earned some income by doing odd jobs, but he used most of his earnings to purchase alcohol. Mr. Hester drank heavily quite often with the amount varying depending on his mood.

The relationship between Mr. Haney and Ms. Hester was never romantic; it was more like that of a father and daughter. Nevertheless, because he was becoming increasingly frail with age, Mr. Haney suggested to Ms. Hester that they should marry in order to enable her to continue receiving his pension and other benefits following his death. Mr. Hester did not like the idea.

By December 1999, Mr. Hester had been living in the mobile home with Mr. Haney and Ms. Hester for approximately four months. On December 14, 1999, Mr. Hester began drinking beer around 11:00 a.m. He left briefly to clear a fence row for a neighbor, and when he returned to the mobile home, Ms. Hester asked him to watch Mr. Haney while she took one of her daughters shopping. Ms. Hester returned to the mobile home around 3:00 p.m. Mr. Hester, who had been drinking “quite a bit,” insisted that he wanted more beer. Ms. Hester tried to convince him to sleep instead. Ms. Hester left the mobile home again around 5:00 p.m. to take her daughter on another shopping trip.

Around 5:30 p.m., Tim Lynn, Ms. Hester's son-in-law, and Johnny Curtis talked with Mr. Hester at Mr. Curtis's garage, which was only a short distance from Mr. Haney's mobile home. Mr. Hester was drinking a 32-ounce beer. He asked to borrow a...