State v. Stephens

• Decision Date: 21 September 2007
• Docket Number: No. M2006-02521-CCA-R3-CD,M2006-02521-CCA-R3-CD
• Citation: 264 S.W.3d 719
• Parties: STATE of Tennessee v. Kirby STEPHENS.
• Court: Tennessee Court of Criminal Appeals

264 S.W.3d 719

STATE of Tennessee v. Kirby STEPHENS.

No. M2006-02521-CCA-R3-CD

Court of Criminal Appeals of Tennessee, at Nashville.

June 19, 2007 Session.

September 21, 2007.

Application for Permission to Appeal Denied by Supreme Court April 14, 2008.

Rehearing Denied July 7, 2008.

Thomas Harding Potter, Nashville, Tennessee, for the appellant, Kirby Stephens.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William P. Phillips, District Attorney General; and John G. Galloway, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA McGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

The Defendant, Kirby Stephens, was convicted by a Fentress County jury of first degree murder and received a sentence of life imprisonment. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether statutory violations in the jury selection process resulted in prejudice to him; (2) whether the trial court erred in its method of polling the jury by a "show of hands"; (3) whether the trial court erred by not requiring the State's designated representative, investigating officer Detective Gary Ledbetter, to testify first, violating the rule of sequestration; and (4) whether the evidence was sufficient to support his conviction. The State responds that, other than the Defendant's challenge to the sufficiency of evidence, his issues are waived due to his failure to timely file a motion for new trial. After review, we conclude that the Defendant's motion for new trial was timely filed and that there was no reversible error. The judgment of the trial court is affirmed.

Factual Background

On May 31, 2002, Bertha Conaster and her husband, Harold Conaster (the victim), awoke around 6:00 a.m. at their home in the Crossroads community of Fentress County. Later that morning, the Conasters went outside to do chores in the yard — Mrs. Conaster "to pick some salad" and the victim to mow the lawn. The victim, noticing something unusual, stopped the lawn mower and said to Mrs. Conaster, "Somebody is down there in them pines. ... I got a glimpse of him." Following this statement, Mrs. Conaster returned to "picking salad[,]" and the victim went to the garage. The garage was on the "other side of the home" from where Mrs. Conaster was located in the garden; thus, she lost sight of the victim. Shortly thereafter, Mrs. Conaster heard a gunshot. She thought that her husband had fired a weapon and continued working in the garden. Approximately "ten minutes" passed before Mrs. Conaster went to check on her husband and found that he had been shot.

At approximately 9:30 a.m., Mrs. Conaster telephoned 911 and "said to please hurry and send someone to Harold V. Conaster on Wright Place Road, I think he shot hisself [sic]." Mrs. Conaster again telephoned 911 four minutes later and stated that she believed he was dead and that there was "no need to take him to the hospital. ..." The operator responded to Mrs. Conaster, "Please let them make that decision when they get there." According to the operator, Mrs. Conaster was "distressed enough" that she was asked to repeat herself.

Emergency personnel arrived at the Conasters' home and discovered the victim dead from a shotgun wound. Officers recovered several pellets from the scene and "the shot cup" of the shotgun shell—the portion of the shell that holds the pellets as the shot moves down the barrel of the shotgun. Based upon damage to the "trees and vegetation[,]" the officers determined that the shooter was standing behind some "brush" in Ms. Pearl Rozanski's yard, the Conasters' next door neighbor. It was estimated that the shooter was forty feet away when firing upon the victim.

Fentress County Deputy Perry Stockton was one of the officers who arrived on the scene and assisted in the investigation. While officers were investigating the scene, the Defendant's two sisters arrived. They "acted very concerned and wanted to know what happened, and they wanted to know if [officers] had" seen the Defendant. After the scene was secured, Deputy Stockton was instructed to go to Jamestown and locate the Defendant, who was considered a suspect in the murder. The Defendant had previously been married to Ms. Rozanski. Although the Defendant and Ms. Rozanski had been divorced since 1995, the two continued to spend a substantial amount of time together.

Deputy Stockton proceeded to town and, at approximately 11:45 a.m., he located the Defendant in the parking lot of Ruth's Restaurant and the Dollar Store. Deputy Stockton pulled up beside the Defendant and asked him to get in the car and wait for Detective Gary Ledbetter of the Fentress County Sheriff's Department and Tennessee Bureau of Investigation (TBI) Agent Charles Scott. The Defendant was not told why he was being asked to wait, but he nonetheless complied with Deputy Stockton's request and got in the car.

Detective Ledbetter and Agent Scott arrived and talked with the Defendant:

[The Defendant] said that he had come to town this morning—or the morning of the murder about 7:00 a.m. He was on the side of the road by Little Crab Road and Highway 52; had flagged down a ride from a boy in an old black Chevy pickup. He said the boy had brought him to town, [and] dropped him off at Arnold Wright's old store. Said he'd sat there for about an hour, walked over to the Diary Mart, said he'd sat there about another hour. Said he had talked to Bear Flowers who was the owner of the Dairy Mart at that time.

He said after he did all that he walked back over to Arnold Wright's and that's where John Tipton had picked him up. Said Mr. Tipton picked him up at Arnold Wright's [s]tore and dropped him off at Ruth's Restaurant.

The Defendant denied being in the Crossroads community that morning and stated to Det. Ledbetter that "he didn't see Pearl anymore, they no longer had a sexual relationship, but he didn't think she was seeing anyone else." The Defendant stated he owned some property in the area of Ms. Rozanski's, but he denied owning any guns. Detective Ledbetter then took the Defendant to the local jail for further questioning.

Later that day, the Defendant consented to a search of his residence, and Deputy Stockton escorted him there "to pick up some guns." Once they arrived, the Defendant "raised up the mattress and showed" Deputy Stockton where three guns were located—"one 12 gauge and one 20 gauge together ... and one 12" gauge that had been taken apart. Deputy Stockton also collected shotgun shells from the table beside the Defendant's bed, including "Remington 12 gauge double aught buckshot." The box of shotgun shells, which normally held five "live rounds[,]" only contained three. Deputy Stockton gave these items to Det. Ledbetter and Agent Scott.

The Defendant was taken back to the jail and read his Miranda rights. The Defendant then stated that "he didn't tell [the officers] about the guns because he was afraid someone would steal them." The Defendant did not otherwise change his statement and was released. At the end of the interview, the Defendant "just told [Det. Ledbetter and Agent Scott] that [they] would have to prove it in [c]ourt in front of a[j]udge." The Defendant also submitted to a gun-shot residue test during this time.

Ultimately, on November 27, 2002, a Fentress County grand jury returned an indictment against the Defendant, charging him with the first degree murder of Harold Conaster. A five-day jury trial was held from August 30, 2004, to September 3, 2004.

The State offered several witnesses placing the Defendant in the Crossroads community on the morning of May 31. Mrs. Nellie Grace Doss, who lived next door to the Conasters, testified that, on May 31, she had been in Cookeville. When she was returning home around 7:00 a.m., she saw the Defendant standing on Highway 52 near the picnic tables and West Cove Road. According to Mrs. Doss, the Defendant always walked and never drove. Mrs. Doss stated that, shortly after 8:30 in the morning, she heard a "big boom." After this loud noise, the Defendant's sisters arrived at Mrs. Doss' home, asking if she knew where the Defendant was.

Mr. Larry Russell testified that he was personally acquainted with the Defendant. On the morning of May 31 at approximately 7:40 a.m., Mr. Russell was going to town to cash a check, when he encountered the Defendant at the intersection of Little Crab/Helena Road and Highway 52. Mr. Russell picked up the Defendant, and they drove toward town. Mr. Russell "let off" the Defendant "at the little bluff at the top of the mountain there[,]" in the area of several picnic tables. He stated that Highway 154 "would be on the left after the bluff." During the ride, the Defendant and Mr. Russell talked about "ginseng digging and arrowhead hunting. ..." Mr. Russell "figured [the Defendant] was gonna do that there. ..." About two weeks earlier, Mr. Russell had dropped the Defendant off at that same place for "arrowhead digging and ginsenging. ..." According to Mr. Russell, when the Defendant "got out of the truck he kindly held on to the bed side and walked down the side of the truck holding on. He was headed ... back down the mountain." Mr. Russell stated that he did not drop the Defendant off at Arnold Wright's store that morning. Mr. Russell stated that he did not think it was possible for the Defendant to conceal a shotgun in the overalls he was wearing on May 31.

Mr. Calvin Bruce Murphy and his wife went to a flea market on the morning of May 31 and then, about 10:00 a.m., went to "Peavy House spring" to get some drinking water. They filled their containers in a couple of minutes and left the spring. About seven or eight minutes later as the Murphys were "coming up the mountain," Mr. Murphy spotted the Defendant at the "ten-mile marker" on Highway 52 on the opposite side of the road...