State v. Hester, No. E2006-01904-CCA-R3-DD (Tenn. Crim. App. 2/5/2009), No. E2006-01904-CCA-R3-DD.

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtD. Kelly Thomas
Decision Date05 February 2009
Docket NumberNo. E2006-01904-CCA-R3-DD.

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No. E2006-01904-CCA-R3-DD.
Court of Criminal Appeals of Tennessee, at Knoxville.
January 28, 2008 Session.
Filed February 5, 2009.

Direct Appeal from the Circuit Court for McMinn County; No. 00-115-117; Allen Wallace, Senior Judge.

Judgment of the Circuit Court Affirmed in Part, Reversed in Part; Case Remanded.

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

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, 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.

D. Kelly Thomas, JR., J., delivered the opinion of the court, in which James Curwood Witt, JR., and Norma McGee Ogle, JJ., joined.



The McMinn County Grand Jury indicted the defendant, H.R. Hester, on one count each of premeditated first degree murder, attempted premeditated first degree murder, and aggravated arson. Following a jury trial, the defendant was convicted on all three counts. The jury found two aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death, see Tenn. Code Ann. § 39-13-203(i)(5); and (2) the victim of the murder was seventy years old or older, see Tenn. Code Ann. § 39-13-203(i)(14). The jury imposed the death sentence for the first degree murder conviction, and the trial court imposed sentences of twenty-five years and twenty years, respectively, for the attempted murder and aggravated arson convictions. All sentences were ordered to run consecutively to each other and to an earlier, two-year probationary sentence, for an effective sentence of death plus forty-seven years.

In this appeal as of right, the defendant challenges his convictions and sentences. He presents for this court's review twenty-nine issues that we generally restate as follows:

I. The trial court's actions and rulings amounted to an egregious pattern of critical violations of the defendant's constitutional right to due process;

II. The defendant was deprived of his constitutional right to a jury panel composed of a fair cross-section of the community;

III. The defendant was deprived of his constitutional right to a fair trial by the defective and illegal methods employed in selecting the venire panel;

IV. The defendant was deprived of his constitutional right to a fair trial by the court's refusal to allow the defense to hire a state-funded expert on venire selection;

V. The defendant's constitutional rights were violated by the trial court's exclusion of certain jurors from the panel;

VI. The defendant was wrongfully deprived of his right to self-representation;

VII. The defendant was entitled to a continuance when new counsel was appointed one week before trial;

VIII. The evidence was insufficient to sustain the defendant's conviction for premeditated first degree murder;

IX. The trial court committed reversible error in demonstrating bias before the jury by commenting on and questioning the jurors regarding certain evidence;

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X. The trial court erred in permitting the State to recall Agent Brakebill to testify that the defendant's blood test was taken some twelve hours earlier than the time written by the hospital nurse and provided to the defense during discovery;

XI. The jury instructions regarding reasonable doubt violated the defendant's constitutional rights;

XII. The trial court committed reversible error in denying the defendant the right to present vital mitigating evidence during the capital sentencing phase of the trial;

XIII. The trial court erred in admitting victim impact testimony at the sentencing phase of the trial;

XIV. The trial court erred in replacing one of the twelve jurors who convicted the defendant in the guilt phase when the juror reported feeling ill during the sentencing phase of the trial;

XV. The trial court erred in denying the defendant the right to allocute before the jury during the sentencing phase of the trial;

XVI. The defendant was denied compulsory process in violation of the Sixth Amendment to the United States Constitution;

XVII. The circumstances surrounding the defendant's waiver of rights in the sentencing hearing violated the defendant's constitutional rights;

XVIII. The trial court erred in enhancing the defendant's sentences in the non-capital cases where none of the enhancement factors were submitted to and found by a jury in violation of Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007) and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ("Gomez II"). The trial court further erred in failing to credit the mitigating factors offered in the non-capital cases;

XIX. The trial court erred in denying the defendant a hearing on his motion for new trial;

XX. Requiring the jury to unanimously agree to a life verdict violates Mills v. Maryland, 485 U.S. 367, 108 S. Ct. 1860, and McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227;

XXI. Tennessee Rule of Criminal Procedure 12.3(B) violates the defendant's due process rights and the principles announced in Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546 (2006), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348;

XXII. The State should have been prohibited from seeking the death penalty when the State waited twenty-two months after indictment before declaring its intent to seek the death penalty and there was no change in circumstances which would justify such action;

XXIII. The death penalty was imposed in a discriminatory manner; XXIV. The cumulative effect of all errors at trial violated the defendant's right to due process;

XXV. The failure to articulate or apply meaningful standards for the mandatory proportionality review violates the defendant's due process rights;

XXVI. Lethal injection is cruel and unusual punishment;

XXVII. The death sentence is unconstitutional because it infringes upon the defendant's fundamental right to life and is unnecessary to promote any compelling state interest;

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XXVIII. The defendant's convictions and death sentence violate international law and the supremacy clause of the United States Constitution; and

XXIX. This court should reject the defendant's sentence of death and remand for resentencing in consideration of the Governor's moratorium on the death penalty, the increasing evidence of the arbitrariness of the death penalty on a national basis, and the constitutional, statutory, and human rights issues presented herein.

Upon review, we affirm the defendant's convictions but reduce the defendant's sentence for attempted first degree murder to twenty years pursuant to Gomez II. In all other respects, the judgment of the trial court is affirmed.

Guilt Phase Proof

Dora Mae Hester testified that she and the defendant were married in April 1992 and divorced six months later following a "violent incident." She said the defendant "came and went" in the ensuing years.

According to Ms. Hester, in 1996 she met Charles Mitchell Haney, the deceased victim in this case, through a mutual friend. Ms. Hester became friends with Mr. Haney and began cooking and cleaning for him because he was elderly and had health problems. At the time, Mr. Haney was about seventy-five years old and unmarried, but had been twice widowed. He had no children but had elderly siblings. Eventually, Mr. Haney requested that Ms. Hester care for him so that he would not have to live in a nursing home. Ms. Hester and Mr. Haney made an arrangement whereby Mr. Haney purchased a mobile home in which they would live. The mobile home was placed on a lot owned by Ms. Hester. Mr. Haney also purchased a car for Ms. Hester to use in driving him to doctor's appointments and for other errands. According to Ms. Hester, she and Mr. Haney combined their incomes, and she wrote checks for Mr. Haney's expenses as needed. The defendant initially lived in a camper that Ms. Hester formerly occupied that was parked on the same lot. After the camper caught fire, the defendant first moved to an apartment, but he later moved into the mobile home with Ms. Hester and Mr. Haney.

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About six months after moving into the mobile home, Mr. Haney fell and injured his knee. As a result of his injury, he moved into a nursing home to undergo physical therapy. Eight months later, Mr. Haney returned to live in the mobile home with Ms. Hester. On his return, Mr. Haney required a walker to move around. Ms. Hester said that in December 1999, Mr. Haney lived in a bedroom at one end of the mobile home, and she and the defendant shared the second bedroom at the opposite end. The defendant did not work steadily but took odd jobs performing plumbing and electrical work. Ms. Hester said the defendant drank alcohol, "sometimes slightly, and then sometimes heavy . . . just according to . . . his moods . . . ."

Ms. Hester recalled the morning of December 14, 1999. She testified that the defendant's mother came over and that he changed the oil in her car. The defendant left with his mother and returned with a 12-pack of beer that he began drinking. He stopped drinking and did some work for a neighbor. Ms. Hester said that when the defendant returned at around 1:00 p.m., she asked him to look after Mr. Haney while she drove her daughter to the store. Ms. Hester testified that she was gone "a pretty good while" and returned to find the defendant drinking again. Later in the day, Ms. Hester tried to get the defendant to lie down and relax because he had "started drinking quite a bit." Ms. Hester said her daughter called, and she left to take her to the store a second time at about 5:30 that evening. Ms. Hester said she returned with...

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