State v. Heater

• Decision Date: 02 June 2016
• Docket Number: No. 15–0343,15–0343
• Citation: 790 S.E.2d 49,237 W.Va. 638
• Court: West Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Jesse Lee Heater, Defendant Below, Respondent

237 W.Va. 638

790 S.E.2d 49

State of West Virginia, Plaintiff Below, Respondent

v.Jesse Lee Heater, Defendant Below, Respondent

No. 15–0343

Supreme Court of Appeals of West Virginia.

Submitted: April 13, 2016

Filed: June 2, 2016

Brian W. Bailey, Buckhannon, West Virginia, G. Phillip Davis, Arthurdale, West Virginia, Attorneys for the Petitioner.

Patrick Morrisey, Attorney General, David A. Stackpole, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent.

Davis, Justice:

Petitioner, Jesse Lee Heater (“Mr. Heater”), was convicted in the Circuit Court of Upshur County of murder in the first degree; conspiracy to commit murder; concealment of a deceased human body; and conspiracy to conceal a deceased human body. The jury did not add a recommendation of mercy to its verdict. Accordingly, Mr. Heater was sentenced to life imprisonment without possibility of parole, as well as three one-to-five year terms of imprisonment, all terms set to run consecutively.

On appeal, Mr. Heater raises three assignments of error. First, he alleges that he was denied his constitutional right to counsel of his choice. Second, he alleges that the trial court erred in denying his request to poll the jury to determine whether any members of the panel had spoken to a protester who was sitting in or near the courtroom. Third, he alleges that the trial court erred in failing to sua sponte order bifurcation of the penalty phase of the trial.

After careful review of the record, the parties' briefs and arguments, and the applicable law, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

This portion of the opinion is divided into two sections. We first relate the underlying facts of the case. We then iterate the relevant pretrial and trial proceedings.

A. Facts of the Case

At the outset, we note that although Mr. Heater attempts to reargue the facts of the case in his brief, particularly with respect to the veracity of co-conspirator/witness Robert Eugene Siron, III, it is well established that,

[t]he function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

Syl. pt. 1, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995). See also State v. McCoy , 219 W.Va. 130, 135, 632 S.E.2d 70, 75 (2006) ; State v. Ladd , 210 W.Va. 413, 424, 557 S.E.2d 820, 831 (2001). Further, “[c]redibility determinations are for a jury and not an appellate court.” State v. Beegle , No. 15-0302, ––– W.Va. ––––, ––––, ––– S.E.2d ––––, ––––, Slip. Op. at 4, 2016 WL 1619871 (Apr. 21, 2016) (citing Syl. pt. 3, in part, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 ).

This case presents a tangled skein of relationships. On January 23, 2013, Robert Eugene Siron, III (“Siron”), upon realizing that after a morning spent gambling what remained in his pay packet was not sufficient to cover the vehicle loan payment due that day, decided to buy a six-pack of beer and spend the day “driving around drinking” and avoiding going home to face his wife. During his travels that day, he came upon his cousin, Mr. Heater, who asked if he could come along. Siron agreed and bought a case of beer for the two men to share.

Some time later, Mr. Heater asked Siron to drive to the home of Josh Oberg (“Oberg”), and Siron agreed. Mr. Heater represented to Siron that Oberg, whom Siron had never met, was a casual friend from work. What Mr. Heater did not tell Siron was that Oberg was having an affair with Kelli Villagomez Correa (“Kelli”), another cousin of the two men, and that Kelli's husband had agreed to pay Mr. Heater $5,000.00 to kill Oberg.

Mr. Heater and Siron spent some time at Oberg's apartment drinking beer and talking about video games, apparently a shared interest, after which the three men went out for cigarettes. On the way back, Mr. Heater “pull[ed] out a bag of weed” and suggested that the three go somewhere else to get high. Siron and Oberg agreed, and Mr. Heater directed Siron to drive to a remote spot in rural Upshur County known as Hog Hollow. Once there and out of the truck, everyone smoked some marijuana and drank some more beer, after which Siron started walking back toward the vehicle because he was feeling the effects of a full day of drinking. Mr. Heater and Oberg were out of Siron's sight, but Siron suddenly “saw a bright flash and heard a boom ... like a firecracker had gone off, and heard a sound like a bag of potatoes hitting the floor.” He heard Oberg ask “[w]hy?” several times, and heard Mr. Heater respond “[t]hat's what you get for f**ing someone's wife.”

A panicked Siron began running toward the truck, but Mr. Heater tackled him, pistol-whipped him, and put a gun to his chin, telling him that, if he did not help dispose of Oberg's body, he would be dead too. The two men put Oberg's body into the back of the truck and took off at a high rate of speed. After passing another vehicle on the road, they stopped to cover up the body with some cardboard. Thereafter, they made several additional stops—to buy a shovel, to buy some more beer, and to use a “porta-potty”—and then drove to Bull Run Road, another rural area with no houses and very little traffic.

At Mr. Heater's direction, Siron dug a shallow grave,¹ and Oberg's body was placed in it. Mr. Heater used Siron's phone to take a picture of the body, after which Siron filled in the grave, and the two men headed to Siron's house. During the trip, Mr. Heater used Siron's phone again, this time to make a phone call in which he announced that “[i]t's done.”

The next day, Mr. Heater and Siron began the process of destroying any evidence of what had happened. They took all of their clothing and everything burnable from the truck, put it on a burn pile, and “set it all on fire.” Mr. Heater had two Zippo lighters that he had taken from Oberg, as well as a knife with blood on it,² all of which he threw into the river behind Siron's house. Although Mr. Heater wanted to burn the truck, Siron convinced him that they could just burn the bed liner, which they did on yet another burn pile. They hid the shovel and some concrete blocks that had been in the truck behind the steps at a friend's home (without the friend's knowledge). They drove back to the scene of the killing where they disposed of their beer bottles and “churned the earth up” to cover a large spot of blood. They searched for, but could not find, their “spent brass.” Finally, to account for the fact that they might well have been seen riding around with Oberg on the day of Oberg's murder, they concocted a story about dropping Oberg off at a bowling alley and seeing him get into a green Jeep.

On the second day after Oberg's murder, Mr. Heater had Siron drive him to a Mexican restaurant owned³ and operated by Rodolfo “Chino” Villagomez Correa (“Villagomez Correa”). Mr. Heater went to talk to Villagomez Correa, taking Siron's phone with him, and then motioned to Siron to come to the counter because he was having a problem finding the picture of Oberg's body. Siron brought up the picture, whereupon Villagomez Correa became “upset that he couldn't see [Oberg's] face.” Mr. Heater told Villagomez Correa that “[i]t's him, it's him,” and “[t]rust me, you'll never see him again, it's him.” Mr. Heater and Villagomez Correa both told Siron that he “was part of this now and if [he] ever said anything, they wouldn't just come after [him], they would come after [his] son and [his] wife.” Villagomez Correa handed Mr. Heater an envelope containing money, from which Mr. Heater later took $500.00 and gave it to Siron with final instructions to Siron to “[j]ust shut up, it'll be fine, shut up.”

But murder will out, as Macbeth famously observed, and, six months later, authorities, acting on a tip from a confidential informant, discovered the “very very decomposed and partially skeletonized” remains of Oberg. On or about July 24, 2012, Mr. Heater, Siron, and Villagomez Correa were arrested and charged with murder for hire.⁴

B. Relevant Pretrial and Trial Proceedings

Attorney James E. Hawkins, Jr. (“Mr. Hawkins”), was initially appointed to represent Mr. Heater, and appeared in that capacity at the bond hearing, the preliminary hearing, and through and after Mr. Heater's indictment in January 2013. However, on June 19, 2013, the State filed a motion asking the court to conduct a hearing to determine whether Mr. Hawkins should be disqualified on the ground that he had previously represented a witness “who states that he [the witness] has knowledge of inculpatory statements made by [Mr. Heater] regarding the crimes alleged in this case.” Mr. Hawkins' initial response to the motion was to resist it, noting that Mr. Heater “vehemently objects to me being removed from his case,” and further that “this is the third time now this has happened to me in a murder case.” Mr. Hawkins asked for time to investigate the alleged conflict of interest and thereafter for an evidentiary hearing, if necessary. The court granted this request.

At a hearing held two days later, Mr. Hawkins informed the court that he had reviewed the recorded statement of the State's witness and that “I have represented, I know, on at least five occasions and am still involved in a case, not representing him, but representing his ex-wife, with whom he still maintains contact, so I still have contact through him, potentially as a witness in that case, assisting her.” Because the State intended to call the witness at trial,⁵ Mr. Hawkins concluded that he had “no other recourse than ... to respectfully, although reluctantly, ask the Court to be permitted to withdraw...