State v. Hester

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 5, 2010 Session

STATE OF TENNESSEE v. H.R. HESTER

Automatic Appeal from the Court of Criminal Appeals

Circuit Court for McMinn County

No. 00-115-117 Allen Wallace, Sr. Judge

No. E2006-01904-SC-DDT-DD - Filed October 5, 2010

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.

Tenn. Code Ann. § 39-13-206(a)(1) (2006); Judgment of the Court of Criminal

Appeals Affirmed and Remanded

W ILLIAM C. K OCH, JR., J., delivered the opinion of the court, in which C ORNELIA A. C LARK,

C.J., JANICE M. H OLDER, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.

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.

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OPINION

I.

T HE C RIMES

Dora Mae Hester and Harold Roy Hester1 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.

1

The official documents in the record and the parties’ briefs frequently refer to Mr. Hester as “H.R.

Hester.”

2

Mr. Haney was receiving his social security income and a military veteran’s pension. Ms. Hester

drew disability benefits.

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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 chain saw and for

assistance in moving some wood. He also tried to borrow ten dollars, but both men refused

to loan him money. Mr. Lynn offered to drive Mr. Hester back to the mobile home. On the

way back to the mobile home, Mr. Hester suggested to Mr. Lynn that they should kill their

wives so that they would not have to listen to their “bitching” any more. Mr. Lynn did not

believe that Mr. Hester was serious.

Ms. Hester returned to the mobile home approximately one-half hour after Mr. Hester

returned from Mr. Curtis’s garage. She prepared hot dogs for dinner, but Mr. Hester stated

that he wanted more beer, not hot dogs. Ms. Hester locked the door behind Mr. Hester when

he left the mobile home. She allowed Mr. Hester back in the mobile home after he knocked

on both the front door and the back door. When Mr. Hester asked Ms. Hester for ten dollars

to purchase more beer, she declined to loan him the money because “he had drank enough

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that day and he didn’t need any more beer.” After Mr. Hester left the trailer again, Ms.

Hester went back to Mr. Haney’s bedroom to tell him that Mr. Hester was angry with her for

not lending him ten dollars to buy more beer.

Mr. Hester re-entered the mobile home while Ms. Hester was in Mr. Haney’s

bedroom. He was carrying a small knife and was very intoxicated. He ordered Mr. Haney

and Ms. Hester into the front room and directed Mr. Haney to sit on his recliner and Ms.

Hester to sit on the love seat. Using his walker, Mr. Haney was able to get to the recliner.

Mr. Hester told them “that he was tired of the way he was treated, things were going

to change . . . .” He then walked up to Mr. Haney, held the knife about six inches from Mr.

Haney’s throat and said, “[Y]ou old bastard . . . . I’ve a good mind to cut your throat.” Mr.

Haney looked straight ahead and did not respond. While Mr. Hester was “cussing and

carrying on,” Mr. Haney remained absolutely silent.

While Mr. Hester was threatening Mr. Haney, Ms. Hester screamed to get her

daughter’s attention and tried to escape through the mobile home’s back door. Mr. Hester

“jerked” her back and threw her behind the love seat. He then held the knife to her throat,

saying that he “was of a good mind to cut [her] throat.” After Ms. Hester begged Mr. Hester

not to cut her throat, he told her to sit on the love seat and be quiet.

Mr. Hester then obtained a roll of duct tape from a cabinet and ordered Mr. Haney to

lie face down on the floor with his hands high in the air behind his back. Mr. Haney

complied, and Mr. Hester duct-taped Mr. Haney’s hands, ankles, and mouth. He then did the

same to Ms. Hester. All the while, Mr. Hester “kept fussing, saying [they were] all going to

die that night, and [that] he was going to go tell the law what he . . . was doing.” Mr. Haney

and Ms. Hester continued to lie face down with their bound hands in the air behind their

backs. Mr. Hester paced around the trailer, talking about how the three of them were going

to die and how he was going to tell the police. Eventually, he sat at the dining table for

approximately five minutes before leaving the mobile home.

When Mr. Hester returned, he was carrying a large jug of kerosene. He walked past

Mr. Haney and Ms. Hester and began pouring kerosene in and around Mr. Haney’s bedroom.

After he poured kerosene throughout the mobile home, Mr. Hester poured kerosene on Mr.

Haney’s face and the rest of his body. He then poured kerosene all over Ms. Hester. It took

Mr. Hester approximately five minutes to pour out the kerosene. Mr. Hester disconnected

all the smoke alarms in the mobile home, and he moved a carrier containing a miniature

Dachshund outside the mobile home. In the process, Mr. Hester commented, “You little

bastard. You haven’t done anything.”

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After completing his grisly preparations, Mr. Hester sat down at the dining table and

smoked a cigarette. He continued to tell Mr. Haney and Ms. Hester that he was going to kill

them and then tell the police what he had done. Mr. Hester first attempted to light the

kerosene with matches, and then with his cigarette, but failed. Finally, Mr. Hester rolled up

some newspaper, lighted it on fire, and then placed the burning newspaper next to the

counter. This time the kerosene ignited. Mr. Hester left the mobile home, leaving Mr. Haney

and Ms. Hester behind in the burning mobile home with their ankles and hands bound with

duct tape.

Even though her mouth was covered with duct tape, Ms. Hester tried to tell Mr. Haney

that she loved him and that she appreciated Mr. Haney for being so good to her. She told Mr.

Haney that she hoped to see him again in Heaven, and then she began to pray. As the mobile

home filled with smoke, Ms. Hester tried to “scoot” towards the door to escape. Somehow,

Ms. Hester was able to escape from the burning mobile home.

Neighbors and family members found Ms. Hester, her clothes on fire, on the steps

outside the burning mobile home. Ms. Hester recalls someone touching her and saying,

“[m]other, it’s me. Don’t be afraid. Roll, [m]other, roll, you’re on fire.” Once the duct tape

was removed from her mouth, Ms. Hester blurted out that “H.R. done this to me.” She also

stated that she could not roll because her hands were duct-taped behind her back. The next

thing that Ms. Hester remembered was a neighbor pulling off her jeans which were still

burning and voices telling her that she would be okay.

Just after 7:00 p.m., Kathy Lynn, Ms. Hester’s daughter, drove to Mr. Curtis’s garage

to find her husband. She had her children in the car, and she was hysterical. Ms. Lynn told

her husband that Mr. Haney’s mobile home was on fire, that someone was trapped inside, and

that she was afraid that Mr. Hester was trying to kill them. Mr. Lynn called 9-1-1 and then

drove his family back to the burning mobile home. He instructed his wife and children to

remain in the car with the doors locked, and then he headed to the mobile home.

The mobile home’s door had melted, and smoke and fire was billowing out of the

doorway. Mr. Lynn saw a body inside and tried to enter the home. He retreated when a flash

of fire burned his face. Mr. Lynn and another neighbor who had responded to the fire agreed

that Mr. Haney was certainly dead and did not attempt to enter the mobile home while the

fire was still raging.

Paramedics arrived at the scene. Ms. Hester was transported first by ambulance and

then by helicopter to Erlanger Hospital’s burn unit. She drifted in and out of consciousness,

but she recalled the paramedics explaining to her everything that was happening. Ms. Hester

sustained serious burns that led to a double amputation of her feet and lower legs. She

received skin grafts on her arms and across her back and chest. Her burns caused a

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significant amount of nerve damage and scarring. Because Ms. Hester’s injuries were so

extensive, she was hospitalized in various medical facilities from December 14, 1999 until

March 28, 2000.

After leaving Ms. Hester and Mr. Haney to die in the burning mobile home, Mr.

Hester walked to a neighbor’s house and asked the neighbor to contact the police. He

surrendered himself to the authorities at approximately 8:00 p.m. When the officers

apprehended Mr. Hester, they noticed that Mr. Hester had fluid-filled blisters caused by the

heat and fire on his left arm. Mr. Hester and his clothing smelled strongly of kerosene. At

that time, the officers recovered from Mr. Hester the knife that he had used to threaten Ms.

Hester and Mr. Haney.

An autopsy on Mr. Haney was performed on December 15, 1999. The medical

examiner concluded that Mr. Haney died as a result of smoke inhalation and thermal burns

and that the thermal burns were the predominant cause of death. The examination

ascertained that the kerosene that Mr. Hester splashed across Mr. Haney’s face had ignited

and that Mr. Haney was alive when he started to burn to death. Mr. Haney died with his

hands still tied behind his back, and his body fixed in that position.

II.

T HE P ROSECUTION AND T RIAL

On February 22, 2000, a McMinn County grand jury indicted Mr. Hester for

aggravated arson, first degree murder, and attempted first degree murder. The State filed

notice of its intent to seek the death penalty for the murder of Mr. Haney on November 13,

2001. The trial was conducted from March 8, 2005 through March 12, 2005. Following the

guilt phase of the trial, the jury found Mr. Hester guilty of aggravated arson, first degree

murder, and attempted first degree murder.

During the sentencing phase of the trial on March 11 and 12, 2005, the State sought

the imposition of the death penalty based on three aggravating circumstances.3 The jury

heard and considered the testimony of a minister who had regularly visited Mr. Hester in

prison, one of Mr. Hester’s acquaintances, and Mr. Hester’s mother, in addition to the

testimony of the State’s witnesses and the reading of three victim impact statements. After

hearing and considering this evidence, the jury unanimously found that the State had proved

3

The three aggravating circumstances included: Tenn. Code Ann. § 39-13-204(i)(3) (Supp. 1999)

(“[t]he defendant knowingly created a great risk of death to two (2) or more persons, other than the victim

murdered, during the act of murder”); Tenn. Code Ann. § 39-13-204(i)(5) (“[t]he murder was especially

heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to

produce death”); and Tenn. Code Ann. § 39-13-204(i)(14) (“[t]he victim of the murder was seventy (70)

years of age or older”).

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the existence of two aggravating circumstances4 and that the State had proved beyond a

reasonable doubt that the aggravating circumstances outweighed the mitigating

circumstances. Accordingly, the jury sentenced Mr. Hester to death for the murder of Mr.

Haney.

Mr. Hester filed a motion for new trial on August 12, 2005.5 On February 16, 2006,

the trial court conducted a sentencing hearing with regard to Mr. Hester’s convictions for

attempted first degree murder and aggravated arson and a hearing on his motion for new trial

with regard to his capital conviction and sentence. The trial court sentenced Mr. Hester to

twenty-five years on his conviction for attempted first degree murder and to twenty years on

his conviction for aggravated arson. The court also ordered that these sentences should be

served consecutively. On May 22, 2006, the trial court filed an order denying Mr. Hester’s

motion for new trial.

Mr. Hester perfected a timely appeal to the Tennessee Court of Criminal Appeals, and

that court handed down its opinion on February 5, 2009. State v. Hester, No. E2006-01904-

CCA-R3-DD, 2009 WL 275760 (Tenn. Crim. App. Feb. 5, 2009). The Court of Criminal

Appeals concluded that the trial court erred by enhancing Mr. Hester’s sentence for

attempted first degree murder based on factors neither admitted by Mr. Hester nor found by

the jury. Accordingly, the Court of Criminal Appeals reduced Mr. Hester’s twenty-five year

sentence to the presumptive sentence of twenty years. The Court of Criminal Appeals also

concluded that the trial court had erred by excluding certain testimony during the sentencing

phase of the proceeding but found that this error was harmless. In all other respects, the

Court of Criminal Appeals affirmed the judgments of the trial court. After conducting its

own independent comparative proportionality review, the Court of Criminal Appeals

concluded that Mr. Hester’s sentence of death for the murder of Mr. Haney was proportionate

to punishments imposed in similar cases.

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-

4

Tenn. Code Ann. § 39-13-204(i)(5), (14).

5

Mr. Hester later filed four amendments to his original motion for new trial before the trial court

conducted the hearing on the motion for new trial.

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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, we affirm the judgment of the Court of Criminal

Appeals, as modified by this opinion. Accordingly, we affirm Mr. Hester’s convictions and

the imposition of a sentence of death.

III.

T HE D ECISION TO P URSUE THE D EATH P ENALTY

Mr. Hester argued both in the trial court and before the Court of Criminal Appeals that

the decision of the District Attorney General to pursue the death penalty for the murder of

Mr. Haney violated his constitutional rights. He raised two arguments. First, he asserted that

the broad discretion afforded Tennessee’s prosecutors is unconstitutional. Second, he

asserted that the twenty-two month delay between his indictment and the filing of the State’s

notice of intent to seek the death penalty rendered the District Attorney General’s decision

to seek the death penalty unconstitutional, when the only intervening change of

circumstances was his decision not to plead guilty. Both the trial court and the Court of

Criminal Appeals rejected these arguments. We also find that these arguments lack merit.

A.

Mr. Hester asserts that the discretion with regard to seeking the death penalty reposed

in Tennessee’s thirty-one District Attorneys General is so broad and unfettered that it renders

any decision to pursue the death penalty inherently unconstitutional. This is not the first time

this argument has been made. For all the reasons set forth in detail in our decision in State

v. Banks, 271 S.W.3d 90, 154-55 (Tenn. 2008), we have found that the application of the

death penalty in Tennessee is not rendered unconstitutional solely because locally elected

District Attorneys General make discretionary charging decisions within a statutory

framework established by the Tennessee General Assembly. Mr. Hester has not offered a

persuasive argument that warrants revisiting this decision.

B.

Mr. Hester also insists that the application of the death penalty to him is

unconstitutional because the State did not file its notice of intent to seek the death penalty

until twenty-two months after his indictment and because the State decided to seek the death

penalty only after he declined to plead guilty. Regrettably, Mr. Hester’s account of the

circumstances surrounding the State’s decision to seek the death penalty in this case reflects

a disturbingly inaccurate version of the facts in this record.

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There is no dispute that a McMinn County grand jury indicted Mr. Hester on February

22, 2000. It is equally beyond dispute that the State filed its notice of intent to seek the death

penalty on November 13, 2001. Accordingly, Mr. Hester’s assertion that twenty-two months

elapsed between his indictment and the filing of the State’s notice of intent to seek the death

penalty is numerically correct. What is patently incorrect is Mr. Hester’s assertion that the

only change in circumstances during the intervening twenty-two months was his decision not

to plead guilty.

On March 13, 2000, approximately three weeks after a McMinn County grand jury

handed down its three-count indictment against Mr. Hester, an assistant district attorney

general informed Mr. Hester and the trial court that the State was considering pursuing the

death penalty and that the District Attorney General would make this decision in the near

future. Following this hearing, Mr. Hester’s assistant public defender engaged in an active

dialogue with the assistant district attorney general regarding the importance of having a

psychological evaluation of Mr. Hester. Complications arose regarding the scheduling of Mr.

Hester’s psychological examination.6 However, at a hearing held on August 7, 2000, Mr.

Hester’s assistant public defender stated that he and the assistant district attorney general

agreed that the examination should be performed, and the assistant district attorney general

stated that he would cooperate with the defense in seeking an acceptable mental health

evaluator.

Various complications continued to cause delay in Mr. Hester’s evaluation. At a

hearing held on September 11, 2000, the trial court inquired whether or not the case would

be a death penalty case. The assistant district attorney general stated that this decision was

linked to the results of Mr. Hester’s psychological evaluation.

Mr. Hester’s first substantial mental health examination was finally conducted in

December 2000 by Dr. William Bernet, the Director of Forensic Services at Vanderbilt

University Medical Center. In his pretrial forensic psychiatric evaluation submitted on

January 9, 2001, Dr. Bernet identified several areas of psychological concern that warranted

further exploration. Mr. Hester’s defense team desired to pursue these inquiries, and the

State continued to cooperate with them.

During a hearing held on August 13, 2001, the State expressed a desire to explore Mr.

Hester’s intelligence quotient in addition to his mental health. On that occasion, the State

noted that it would most likely be seeking the death penalty and, therefore, requested the trial

6

There is little need to catalogue all the causes of these complications; however, one of the

complications was Mr. Hester’s objection to having the testing conducted at the Hiwassee Mental Health

Center.

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court to order that Mr. Hester’s intelligence be tested before making a final decision.7 The

trial court entered an order on August 17, 2001 directing that additional testing be performed

to ascertain Mr. Hester’s intelligence quotient.

The subject of a possible plea agreement was also broached during the same August

13, 2001 hearing. When the defense counsel alluded to a plea offer, the assistant district

attorney general immediately responded by stating: “wait a minute. It wasn’t a plea offer.

It was my willingness to go to my boss and say, ‘Look, this is what I’d like to do.’” It

appears from the record that Mr. Hester had been asked whether he would be willing to plead

guilty and was told that if he was, the assistant district attorney general would take up the

matter with the District Attorney General. As it turned out, Mr. Hester expressly refused to

plead guilty to a crime that he had no recollection of committing.

Contrary to the assertions in Mr. Hester’s brief, the record reflects that the State’s

filing of the notice of intent to seek the death penalty was not chiefly due to Mr. Hester’s

decision not to plead guilty to the murder of Mr. Haney. The State’s decision on this matter

was delayed because of the months of delay associated with obtaining and completing the

psychological evaluation and intelligence testing. We find no basis to attribute these delays

to any improper actions by the State. We decline to fault the State for waiting until these

evaluations had been completed and their results reported before making such a momentous

decision as whether or not to seek the death penalty.

We hasten to add that the constitutionality of the State’s decision to pursue the death

penalty against Mr. Hester would not be undermined even if Mr. Hester had been able to

demonstrate that the State decided to pursue the death penalty because Mr. Hester declined

to plead guilty. We have already held that District Attorneys General, when they are deciding

whether or not to pursue the death penalty, may make a plea offer of a lesser penalty than

7

Specifically, the assistant district attorney general argued:

[T]he death penalty, as I recall the structure of the statute, there is incorporated in it a

provision about if the individual’s I.Q. is below a certain level, we cannot seek the death

penalty, and maybe we need that as a threshold determination before we get all this other

machinery started. If he doesn’t . . . fit within the category of a person that we can seek it

for, there’s no sense in . . . probably we should get that done and then . . . schedule the rest

of the case, depending on what it shows.

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death and then may pursue the death penalty if the defendant rejects the plea offer. State v.

Mann, 959 S.W.2d 503, 509-11 (Tenn. 1997).8

In State v. Coffin, 991 P.2d 477, 498 (N.M. 1999), the New Mexico Supreme Court

was confronted by circumstances similar to the present case, where the possibility of the

death penalty had been a constant backdrop of a case but where the State had not actually

filed its notice of intent to seek the death penalty until the defendant rejected a plea

agreement offer. The New Mexico Supreme Court explained its rationale for upholding the

constitutionality of the State’s decision to file a notice of intent to seek the death penalty after

the defendant decided not to accept the State’s plea offer as follows:

[A]lthough the State delayed filing a notice of intent to seek the

death penalty, the State repeatedly indicated to Coffin that it

viewed this case as a potential death penalty case. The

possibility of the State seeking the death penalty was a

continuing reality in this case. Under these circumstances, we

cannot accept Coffin’s characterization of the State’s filing of

a notice of intent to seek the death penalty in this case as a

change in prosecutorial action, subsequent to the defendant’s

exercise of a right, that would subject the prosecutor’s conduct

to scrutiny for possible retaliation. Therefore, we conclude that

Coffin’s claim of prosecutorial vindictiveness is without merit.

State v. Coffin, 991 P.2d at 498.

Under the circumstances of this case, we find no constitutional violation with regard

to the State’s filing of its notice of its decision to seek the death penalty. By the time the

State filed its formal notice on November 13, 2001, it had been clear both to the trial court

and to Mr. Hester for many months that the State viewed this case as one warranting the

death penalty but that the State was awaiting the results of the psychological and intelligence

quotient tests before making a final decision. Mr. Hester can hardly claim that he was

8

We observed that

[t]o hold, as the defendant urges, that the State can pursue no greater charge or seek no

greater punishment than that offered during plea negotiations could effectively abolish the

practice of plea bargaining in first degree murder cases. Prosecutors would rarely, if ever,

be willing to make an offer of leniency in exchange for a guilty plea. We decline to adopt

such a radical and far reaching principle.

State v. Mann, 959 S.W.2d at 510.

-12-

surprised when the State filed its notice. Nor can he claim prejudice in light of the fact that

the State filed its notice approximately forty months before the trial.

IV.

T HE A LLEGED D ENIAL OF M R. H ESTER’S R IGHT OF S ELF-R EPRESENTATION

Mr. Hester argued to the Court of Criminal Appeals that the trial court

unconstitutionally denied his request for permission to represent himself. The Court of

Criminal Appeals found that the trial court’s actions did not violate Mr. Hester’s right of self-

representation because he had not “clearly and unequivocally asserted his right to proceed

pro se.” State v. Hester, 2009 WL 275760, at *23. The Court of Criminal Appeals also

noted that “[t]he record does not reflect that the defendant objected to counsels’

representation or reasserted his request to proceed pro se after Ms. Parton was permitted to

withdraw” and instead reflects that he proceeded to trial with Rich Heinsman as lead counsel

and Lee Davis as second chair. State v. Hester, 2009 WL 275760, at *23. While we do not

subscribe to the basis for the Court of Criminal Appeals’ decision, we concur that the trial

court did not unconstitutionally interfere with Mr. Hester’s right of self-representation in this

case.9

A.

Mr. Hester’s assertion of his right to self-representation must be considered in the

rather convoluted context of his relationship with the lawyers who represented him in this

case. As early as September 2000, Mr. Hester asked the trial court to appoint him another

lawyer because he lacked confidence in William Donaldson, the assistant district public

defender who had been assigned to represent him. Mr. Hester believed that Mr. Donaldson

had lied to him. The trial court told Mr. Hester that Mr. Donaldson had been appointed to

represent him and that he should endeavor to work with Mr. Donaldson.

Following the State’s decision to pursue the death penalty, the trial court appointed

Mr. Heinsman, a Chattanooga lawyer, to represent Mr. Hester along with Mr. Donaldson.

Three days later, the trial court designated Mr. Heinsman as Mr. Hester’s lead counsel and

Mr. Donaldson as co-counsel. On February 15, 2002, approximately two months following

his appointment, Mr. Heinsman filed a “sealed motion” with the trial court requesting that

9

This Court may affirm a judgment on different grounds than those relied upon by the lower courts

when the lower courts have reached the correct result. Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn.

1986); Hopkins v. Hopkins, 572 S.W.2d 639, 641 (Tenn. 1978).

-13-

the Office of the Public Defender be removed from its representation of Mr. Hester.10 Mr.

Donaldson took considerable offense.

At a hearing conducted on February 19, 2002, Mr. Donaldson asserted that Mr.

Heinsman had filed the motion in order to have one of his friends appointed co-counsel

rather than Mr. Donaldson. Another public defender expressed concern that Mr. Heinsman

had “poisoned” the Office of the Public Defender out of the case. To complicate matters

further, the public defenders and the State requested the trial court to remove Mr. Heinsman

from the case because he had arranged a meeting between Mr. Hester and Ms. Hester without

their knowledge and because of the complications resulting from that meeting.

The hearing resumed on February 25, 2002. During that hearing, the trial court

learned that two persons working with Mr. Heinsman11 had talked with Ms. Hester about her

life with Mr. Hester and their efforts “to keep [Mr. Hester] from getting the death penalty.”

In addition to making general offers of assistance with obtaining groceries or with

transportation, they invited Ms. Hester to join them for dinner and then to accompany them

to the McMinn County Justice Center to meet with Mr. Hester. Mr. Heinsman later joined

his colleagues, and they asked Ms. Hester to help them find out how much of the events of

December 14, 1999 Mr. Hester could remember. Ms. Hester accepted the dinner invitation

and, following dinner, accompanied Mr. Heinsman and his two associates to the McMinn

County Justice Center. Mr. Heinsman arranged for this meeting without consulting Mr.

Donaldson.12

By that time, the trial court had already decided to remove the Office of the Public

Defender from the case. Based on the evidence presented at the hearing regarding the

meeting between Ms. Hester and Mr. Hester and on its in camera review of a transcript of

the recorded statements made by Mr. Hester, the trial court decided that Mr. Heinsman

should also be removed from the case. The trial court’s decision was based on the evidence

that Mr. Heinsman had not consulted Mr. Donaldson about arranging for Ms. Hester to meet

with Mr. Hester, the expressed concern that Mr. Hester’s recorded statements which would

not be protected by the attorney-client privilege, included inculpatory, as well as exculpatory,

statements, and the possibility that Mr. Heinsman might be called to testify at trial. The trial

10

Mr. Heinsman provided a complete copy of the motion to Mr. Donaldson but provided only a

redacted copy to the Office of the District Attorney General.

11

Ms. Hester identified these persons as Elaine Kelly and Dr. David Ross.

12

The evidence regarding Ms. Hester’s jailhouse meeting with Mr. Hester reflects that all did not

proceed as Mr. Heinsman envisioned. Even though Ms. Hester was informed that both sides of the

conversation would be recorded, only Mr. Hester’s side of the conversation was recorded. In addition, one

of Ms. Hester’s daughters came to the jail unexpectedly when she found out that Ms. Hester was visiting Mr.

Hester and vented her anger at Mr. Heinsman for arranging the meeting.

-14-

court concluded that Mr. Heinsman’s decision to permit his client to engage in an

uncontrolled dialogue with one of the victims that would not be protected by the attorney-

client privilege had created too much of a risk of future complications to permit Mr.

Heinsman to continue representing Mr. Hester.

Mr. Heinsman objected and sought permission to call Mr. Hester to testify regarding

his desire to keep Mr. Heinsman as his lawyer. The trial court stated that Mr. Hester’s

testimony was not relevant and ruled from the bench on February 25, 2002 that Mr.

Heinsman should be discharged as Mr. Hester’s lawyer. On March 1, 2002, the court filed

a written order removing Mr. Heinsman from the case.

Mr. Hester promptly contested Mr. Heinsman’s removal by filing a Tenn. R. App. P.

10 extraordinary appeal with the Court of Criminal Appeals on March 7, 2002.13 On March

14, 2002, the Court of Criminal Appeals entered an order staying proceedings in the trial

court, including the removal of Mr. Heinsman. In an order entered on June 3, 2002, the

Court of Criminal Appeals determined that the trial court had “improvidently” discharged

Mr. Heinsman and ordered that Mr. Heinsman be reinstated as Mr. Hester’s lead counsel.

On July 8, 2002, the trial court appointed Kim Parton as co-counsel for Mr. Hester.

Little progress was made in the case over the course of the next year. During a June

9, 2003 hearing, the trial court expressed its disappointment with the performance of lead

counsel for both the State and Mr. Hester. The trial court stated:

I’m going to do a little talking here, . . . and I’m going to

try to remain calm. But I want both of you gentlemen to know

that you’re very perilously close to trying the patience of the

Court. There’s been a lot of things, quite frankly, from both

sides that I’ve not been very happy with that’s been going on

throughout the course of this trial. There are things I think each

of you all have done to deliberately antagonize the other. None

of that has helped this case, the progress of it under any way

whatsoever. My main concern when I get a case is try to

approach the case, and as rapidly as I can, [to] get this matter to

trial, with both sides having the opportunity to do everything

they need to do in order to properly prepare for the trial. I don’t

think that has happened in this case. And I understand at this

point we’ve got -- everybody’s finger-pointing, saying it’s the

other side’s fault. “We’re trying to do what we’ve got to do, but

the other side won’t do this and the other side won’t do that.”

13

Mr. Hester did not take issue with the dismissal of the Office of the Public Defender.

-15-

I understand my job is not supposed to be easy, and I’ve

never pretended it ought to be. But none of this kind of antics

on either side helps . . . . I don’t think it helps any of us for the

kind of transactions that we’ve had from both sides and the

animosity that I see developing over -- and I know cases are

complex, and nothing that I say in any way is to try to mitigate

what -- the kind of case that Mr. Hester is facing. He faces the

ultimate punishment. We’ve not dealt much with his case since

this case has come out of grand jury. We’ve dealt with

everything else, and Mr. Hester has sort of been off to the side.

We’re not in some ways any closer to getting this matter to trial

than we were the day it came out of grand jury. And I’m at the

point of being flustered from both sides, and I want everybody

to understand that.

The trial court requested the lawyers for both sides to work more professionally with each

other. The trial court promised the parties that it would continue to be available to assist the

lawyers in moving the case toward trial.

Circumstances had not improved by the time of a hearing held on July 4, 2003.

Reflecting upon a motion for recusal and on dueling motions to remove the District Attorney

General’s Office and Mr. Heinsman, the trial court decided to withdraw from the case and

to request the appointment of a special judge. The trial court explained:

I think the better procedure at this point is to get a judge who

hasn’t gone through all of this and be -- look at the case and

listen to the facts on both sides . . . . I will call the

administrative office and have a new judge appointed . . . . We

may even try to call them today and explain the situation to

them, have a judge appointed that can hear these things from a

fresh standpoint. That may be what everybody needs. And

certainly, if I’ve been any fault in moving this case, I apologize

for that. But my interest from the beginning has been to move

the case, and that hasn’t happened.

On July 21, 2003, the Chief Justice appointed a senior judge to replace the original

trial judge. Just over one year after his appointment, the replacement trial judge had grown

weary of Mr. Heinsman’s dilatory conduct. During an August 6, 2004 hearing, the judge,

addressing Mr. Heinsman, stated: “I’m removing you from this case completely. You can’t

get ready for trial. You’ve drug your feet around here. I’ve set down a deadline for the case

-16-

and you haven’t followed it.” The court reiterated, “I’ve set down . . . a scheduling order that

has not been followed. This case has got to get to trial.”

The trial judge also permitted Mr. Hester to address the court regarding Mr.

Heinsman’s removal. Mr. Hester stated:

I don’t believe I can . . . get a fair trial without Mr. [Heinsman].

He’s been on my case long enough to know what’s going on.

He’s . . . worked with me. He’s . . . let me know everything

that’s going on as it’s went . . . . Mr. [Heinsman] in my opinion

is a fine lawyer. He’s . . . done . . . what he set out to do, told

me he was going to do . . . .

I think he’d only been on the case for two months when they

took and fired him because he was out there actually working

for me. If you fire him, that’s exactly what the State’s been

wanting to do all along, is get rid of Mr. . . . Heinsman. Then

. . . somebody else can take this . . . excuse . . . the way I put

this, but put their finger up their rear end . . . .

At this juncture, the trial judge reconsidered removing Mr. Heinsman entirely from the case

and suggested instead substituting Ms. Parton as lead counsel with Mr. Heinsman remaining

as co-counsel. Ms. Parton and Mr. Heinsman conferred with Mr. Hester. They reported back

to the court that “client and counsel aren’t interested in swapping roles.”

In response, the trial judge stated: “Mr. Hester is pleased with his lawyer, pleased with

Mr. Heinsman. But it’s not up to Mr. Hester. It’s up to me. Sure, if Mr. Heinsman can drag

this thing out for 10 more years, I’d be pleased with him too.” The trial court expressed its

concerns about Mr. Heinsman’s flagrant violations of scheduling orders and his attempts to

delay the proceedings. During this discussion in open court, Mr. Hester blurted out, “I don’t

think nobody would be more qualified than Mr. [Heinsman].” The court concluded that the

case was never going to reach trial with Mr. Heinsman representing Mr. Hester.

Accordingly, the court announced that Ms. Parton would take over as lead counsel and that

he would take under advisement the issue of whether Mr. Heinsman would continue to

represent Mr. Hester as second chair.

In a written opinion filed on September 9, 2004, the trial court expanded on its reasons

for replacing Mr. Heinsman with Ms. Parton. Among Mr. Heinsman’s actions that the court

found troubling were Mr. Heinsman’s disregard of the scheduling orders and the

inconsistencies and potentially misleading omissions in Mr. Heinsman’s justifications for his

many requests for continuances and extensions of time. Even though the trial court gave Mr.

-17-

Heinsman numerous opportunities to address his concerns, Mr. Heinsman declined to

respond. Eventually, and “with great reluctance,” the court decided to permit Mr. Heinsman

to remain as co-counsel to Ms. Parton because Mr. Hester “strongly wants Mr. Heinsman to

stay on his case.”

Mr. Hester disagreed with the trial court’s decision to remove Mr. Heinsman as lead

counsel and wrote a series of letters directly to the court. In the first of these letters, Mr.

Hester wrote that “Mr. Heinsman did more for me in 6-8 weeks than [Mr.] Donaldson did

in two years (more in two weeks, truth be known). [Mr. Heinsman] let me know every

move[,] asked what I thought[,] explained the Whys + Why nots. He let me be involved in

my case.” He also wrote that Mr. Heinsman “sto[o]d by me. Three years of fight. Three

years of mud-slinging, name calling . . . . I don’t know how he got all the work done he did.”

Mr. Hester concluded, “[s]o if Mr. Rich Heinsman is not back on my case le[a]d attorney.

I want to fire Mrs. Kim Parton. And represent myself. Because I believe Mrs. Parton is

working with or for the DA’s office . . . . I TRUST NO ONE but Rich Heinsman attorney

at Law” and that Mr. Heinsman had been “the only one that’s been stra[ight] up with me.”

Mr. Hester wrote a second letter to the trial court in two installments.14 In the first

installment dated October 27, 2004, Mr. Hester praised Mr. Heinsman and requested his

reinstatement as lead counsel.15 In the second portion of the letter, a postscript dated

November 10, 2004, Mr. Hester announced his decision to fire both Mr. Heinsman and Ms.

Parton and to represent himself.16 On November 23, 2004, the trial court informed Mr.

Hester that it was improper to correspond directly with the court. The court informed Mr.

Hester that it had forwarded his letter to his lawyers and that the court would respond only

to motions filed in accordance with the rules of court. On December 13, 2004, Mr.

Heinsman and Ms. Parton filed a motion for instructions regarding Mr. Hester’s request to

14

Even though the letter was dated October 27, 2004, Mr. Hester apparently did not mail it until after

he wrote the November 10, 2004 postscript.

15

Mr. Hester stated:

“I’ve written you, to please put Rich Heinsman back as le[a]d attorney twice before . . . .”

I “since have found out Mr. Heinsman is back as co[-]counsel. This is not acceptable. Mrs.

Parton, may be a great attorney. But I do not know. I do not know her[] very well or trust

(Not with my life) at all. I do trust Rich to a point and have a good working relationship

with him.”

16

Mr. Hester stated in the postscript that “[s]ince this letter was wrote I decided to represent myself

and am sending a copy of the notarized + registered letter I’m sending to Mr. Heinsman and Mrs. Parton

firing them.” Mr. Hester added, “[i]f I got enough mind about me to stand this death penalty trial, and I do,

the state paid enough to prove it. I’ve enough mind to say what I want to do and that[’]s represent myself.”

Mr. Hester also added that he would need his full case file in order to represent himself and that the “longer

it takes to get the file. The longer it[’]s going to take me to be ready for trial.”

-18-

represent himself, stating that they did “not join the defendant’s motion in substance, but

have been instructed to bring this matter before the Court.”

During a January hearing on the motion for instructions, Mr. Hester explained that

I’ve just found out within the last six months or . . . so that the

past three years they’ve not took and worked this case as to try

to win it or anything, just . . . trying to get the death penalty off

from me, which . . . I feel they should not worry about that and

work the case. I’ve . . . been told they wasn’t going to waste

their time trying to defend me, that they are fighting against the

death penalty. Not keeping in touch, or answering letters. They

have not let me know what’s going on, like when you fired Mr.

Heinsman I didn’t know he was even hired back up . . . until a

couple of days before after when we was suppose[d] to go to

trial.

The trial court also had an extensive discussion with Mr. Hester regarding his education and

his lack of understanding of legal proceedings and the law. The trial court explained to Mr.

Hester the problems with a defendant representing himself or herself, particularly in a

complicated legal proceeding such as a capital case. The trial court also discussed with Mr.

Hester some of his own limitations that would create complications for self-representation.

Ultimately, the trial court decided not to allow Mr. Hester to represent himself. The court

explained its reasoning as follows: “It’s obvious to the Court, I think it would be obvious to

any judge that if this man were to represent himself it would be a catastrophe as far as his

personal liberty is concerned, and so I’m going to leave the lawyers in the case.”

On February 10, 2005, the trial court conducted a second hearing on the issue of Mr.

Hester’s request to represent himself. The trial court stated that it had decided to reconsider

its earlier decision and that it desired to hear from Mr. Hester again. The court again talked

with Mr. Hester about his level of education and lack of legal experience, the charges against

him and the sentences that could be imposed, the complexities of substantive and procedural

law in handling a capital case both at the guilt and sentencing phase, and his constitutional

rights with regard to electing whether to testify and to be represented by an attorney.

The trial court informed Mr. Hester that he would be expected to proceed with the trial

as of the scheduled trial date of March 8, 2005, less than one month away. In response, Mr.

Hester stated that requiring him to be ready so quickly was unfair and improper. The trial

court then inquired about Mr. Hester’s desire to represent himself. This question prompted

the following exchange:

-19-

THE COURT: Do you understand that you have a right to be

represented by counsel, by Ms. Parton and Mr. Heinsman?

DEFENDANT HESTER: I’ll not be represented by Ms. Parton.

I’ll represent myself.

THE COURT: And it’s your, it’s your desire to give up the

assistance of counsel and proceed without counsel and represent

yourself. That’s what you want to do.

DEFENDANT HESTER: Unless I can get private counsel.

THE COURT: Sir?

DEFENDANT HESTER: Unless I can get private counsel

between now and then.

...

THE COURT: Now you had indicated that, that you were going

to represent yourself unless you could hire an attorney in the

meantime.

DEFENDANT HESTER: Come up with a private attorney. I

can’t hire one, but if I can come up with a private attorney . . .

.

DEFENDANT HESTER: I, I feel I have to represent myself,

because I’ve had insufficient --

THE COURT: No, no, I don’t, I don’t care what you have to do

--

DEFENDANT HESTER: -- counsel for all along I’ve been in

jail.

...

THE COURT: I’ve told you this case is set for trial March 8th.

Even going to trial on March 8th, you still want to represent

yourself?

-20-

DEFENDANT HESTER: Might as well. I’m going to be

screwed either way, so . . .

...

DEFENDANT HESTER: They’ve not took and -- they’ve went

and spent three years fighting this death penalty, not trying to

defend me. Ms. Parton says she will not, told me to my face,

she would not waste her time trying to defend me. And that, in

that ruling, I’ll be better off representing myself, period. (Brief

pause)

They’re fighting the death penalty. I’ve told them from the day

one, I’m not worried about a death penalty. If I’m guilty, I

deserve it, but fight the case, work the case. They’ve worked,

they’ve . . .

THE COURT: Well, now you’ve just told me that representing

yourself, that you’d have a hard time fighting this, the facts of

the initial phase of this case.

DEFENDANT HESTER: Right. I would.

THE COURT: Well, don’t you think they’re going to have the

same problem?

DEFENDANT HESTER: Well, I’ve been in jail for five years.

They’ve been on the streets. They could have took and done it.

I mean, I ain’t saying there’s stuff out there. They may not have

been able to, but they -- there’s things I’ve took and suggested,

this, that, and the other, “Can’t be used in court.” Great, it can’t

be used, but I’ve been told it can be used in a retrial. Then turns

around, if it ain’t used in, said in court, it can’t be used in a

retrial. That’s contradicting itself.

THE COURT: Mr. Hester, Mr. Hester . . .

DEFENDANT HESTER: I’ll rep --, I’ll represent myself, sir.

THE COURT: You almost --

-21-

DEFENDANT HESTER: Unless I can get a private lawyer.

THE COURT: Well, are you, are you going to try to hire a

private lawyer?

DEFENDANT HESTER: I don’t know. I don’t, I don’t see how

I can. I ain’t got . . .

THE COURT: Well, why do you think you, why do you think

you need a private lawyer?

DEFENDANT HESTER: I, I feel kind of strange that the State’s

paying somebody to represent me when the State’s the one that’s

trying to kill me. It’s sort of contradiction of, a contradiction of

interest.

...

THE COURT: And it’s your desire that I appoint what is known

as elbow counsel, someone to sit next to you and advise you, in

case I grant your motion?

DEFENDANT HESTER: According to what counsel it is.

THE COURT: Now there you go trying to dictate to the Court

again what I’m supposed to do and cannot do.

DEFENDANT HESTER: You’re asking me what I would like,

yes or no. I’d like for Mr. Heinsman, if he wants to be my

counsel, elbow counsel, yes. If it’s Ms. Parton, I don’t trust her.

No. . . . Another attorney altogether would be fine too.

In ruling upon Mr. Hester’s motion, the trial court stated the following:

Mr. Hester, it’s almost a paradox for you to complain to the

Court how long you’ve been on the case. Mr. Heinsman was

your lead counsel, and every single time I tried to get you to

trial, something would happen to frustrate that trial, and that’s

the reason Mr. Heinsman is not the lead counsel anymore. And

then you come in here, and that’s the only reason that you have

filed this motion. You’re upset because this Court relieved Mr.

-22-

Heinsman. But I could not get Mr. Heinsman to get you to trial.

And now the lawyer that you thought so much of, that you’re

now complaining because he hasn’t got you to trial. I had this

case set for trial twice . . . before, and every time something

would come up. One time, he even had you an appointment at

Vanderbilt on the date the trial was due to start. And you went

along with all that. You was in court and heard it all. You had

no objections to enter that time, not at all. And it’s almost

paradoxical to come here now and complain about being in jail

for five years and not having a trial. Now you’re not going to

dictate to this Court. That’s what you think you’re doing. I

think . . . Mr. Hester, that . . . you’re almost to the point of

playing with the system, and I’m as serious as any judge, any

person in the world about the death penalty. It’s not something

to play with. It’s not something that any person that’s got any

humane feeling about them at all enjoys seeing, or wants. But

you’re trying to play with the system because you didn’t get your

way with Mr. Heinsman who kept frustrating this Court trying

to get this case to trial. And that’s the bottom line.

...

I was reading . . . some cases . . . , and I come across a case I

thought . . . hit home. It came out of the Sixth Circuit Court of

Appeals . . . similar situation that we have here, and Judge Engel

wrote a concurring opinion, except he reemphasized Judge

Jones’s opinion.17 It says, “In this, it seemed to me so,” Judge

Engel says, “from a careful review of the record that this was a

case in which the defendant in this case McDowell sought not

the protection of the constitutional guarantee of the right to

counsel and to the right to represent oneself, but instead to

manipulate a system designed for his own protection in order to

gain advantage totally, from a totally unwarranted and unjust

abuse of it.” Mr. Hester didn’t get his way with this -- he got rid

of one lawyer. He continued to complain about him. Then he

didn’t get his way here with Mr. Heinsman, and I don’t think

this is a matter of waiving counsel. I don’t think it’s a matter of

constitutional rights. Mr. Hester is just a spoiled brat and he

17

The opinion the trial judge is referencing is Judge Engel’s concurring opinion in United States v.

McDowell, 814 F.2d 245, 252 (6th Cir. 1987) (Engel, J., concurring).

-23-

wants to come in here and play with this Court, and . . . just to

frustrate the process of this Court.

That’s all it is, Mr. Hester. You’re not capable of representing

yourself. You know that.

. . .

The medical records in this case all have already been made a

part of this record, and bear out the fact that . . . . Mr. Hester has

a problem communicating physically and mentally. He loses his

train[] of thought. It would be an absolute miscarriage of justice

in this case for this Court to grant your request . . . . I said a

while ago the State didn’t care. They do. If they get someone

on death row, they want to try to get them on there right, not by

default. And you’re trying to get on death row by default. And

I don’t, me or no other person trained in the law that has any

respect for the law or any respect for the Constitution is going

to allow that to happen. And that’s -- you’re trying to frustrate

the system. You’re not getting your way. Tough. I’m not going

to let you take advantage of the system. I don’t think you’re

capable of representing yourself. I’m not going to accept your

waiver.

On February 25, 2005, approximately two weeks after the trial court’s denial of Mr.

Hester’s request to represent himself, an incident occurred between Mr. Hester and Ms.

Parton that prompted Ms. Parton to request permission to withdraw from representing Mr.

Hester. In her motion, Ms. Parton stated that Mr. Hester was upset by the trial court’s

decision to name her as lead counsel, that he had refused to cooperate with her, that he had

continued to insist that Mr. Heinsman should be lead counsel, and that Mr. Hester had

threatened to have her and her family killed. Based on this information, the trial court

permitted Ms. Parton to withdraw and returned Mr. Heinsman to the lead counsel position.

When the trial court gave him an opportunity to respond to this decision, Mr. Hester did not

object to Ms. Parton’s withdrawing from the case. He also did not renew his request to

represent himself after Mr. Heinsman again became his lead counsel.

B.

Mr. Hester argued to the Court of Criminal Appeals that the trial court erred by

denying his request to represent himself. While it found that Mr. Hester’s request was

timely, the Court of Criminal Appeals determined that the request was not clear or

-24-

unequivocal. The Court of Criminal Appeals did not directly address whether Mr. Hester’s

waiver of his right to counsel was knowing and voluntary; however, the court did conclude

that the trial court’s inquiries regarding Mr. Hester’s lack of legal skills were relevant to his

competency to waive his right to counsel. In this Court, Mr. Hester again insists that the trial

court deprived him of his right of self-representation protected by the Sixth Amendment to

the United States Constitution and Article I, Section 9 of the Constitution of Tennessee.

The determination of whether a defendant has exercised his or her right of self-

representation and has concurrently waived his or her right to counsel is a mixed question of

law and fact. United States v. Kimball, 291 F.3d 726, 730 (11th Cir. 2002); United States v.

Robinson, 913 F.2d 712, 714 (9th Cir. 1990); Spencer v. Ault, 941 F. Supp. 832, 851 (N.D.

Iowa 1996); State v. Jordan, 984 A.2d 1160, 1166 (Conn. App. Ct. 2009); 1 Kevin F.

O’Malley et al., Federal Jury Practice & Instructions § 5:6 (6th ed. 2009). Tennessee

appellate courts review “mixed questions of law and fact de novo, accompanied by a

presumption that the trial court’s findings of fact are correct.” State v. Holmes, 302 S.W.3d

831, 837 (Tenn. 2010). An error in denying the exercise of the right to self-representation

is a structural constitutional error not amenable to harmless error review and requires

automatic reversal when it occurs. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

Article I, Section 9 of the Tennessee Constitution and the Sixth Amendment to the

United States Constitution guarantee not only a right of the accused to be represented by

counsel but also a right to self-representation. State v. Small, 988 S.W.2d 671, 673 (Tenn.

1999).18 These two rights – the right to counsel and of self-representation – are alternatives,

with a defendant being able to assert one or the other but not both. Lovin v. State, 286

S.W.3d 275, 284 (Tenn. 2009); State v. Small, 988 S.W.2d at 673. Respect for individual

autonomy when one’s liberty has been imperiled through the leveling of an accusation of

criminal conduct has led to a general prohibition upon forcing an unwanted attorney on an

unwilling client. Lovin v. State, 286 S.W.3d at 285; see also Faretta v. California, 422 U.S.

806, 834 (1975).

18

The relevant language of the Tennessee Constitution differs from the United States Constitution.

While Article I, Section 9 of the Constitution of Tennessee guarantees “[t]hat in all criminal prosecutions,

the accused hath the right to be heard by himself and his counsel[,]” the Sixth Amendment to the United

States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” We have previously addressed the legal significance of the

differences in the language of these two provisions. See generally State v. Burkhart, 541 S.W.2d 365, 368-72

(Tenn. 1976). In his briefing before this Court, Mr. Hester has not asserted that the Tennessee Constitution

may address the circumstances of this case differently than the United States Constitution. Accordingly,

absent briefing or argument on this issue, we decline to consider whether Article I, Section 9 might provide

greater protection to Mr. Hester than the Sixth Amendment.

-25-

To exercise a constitutional right of self-representation, an individual must waive his

or her constitutional right to counsel. State v. Small, 988 S.W.2d at 673; 3 Wayne R. LaFave

et al., Criminal Procedure § 11.5(c), at 739 (3d ed. 2009) (“LaFave, Criminal Procedure”).

“Just as the right to counsel extends through various stages in the criminal justice process,

waiver of that right can occur at each of those stages. In some respects, what is required for

a valid waiver will vary with the particular stage.” 3 LaFave, Criminal Procedure § 11.3(a),

at 678. When balancing the right of self-representation against the right to counsel at the trial

stage of proceedings, the courts have assigned a constitutional primacy to the right to counsel

over the right of self-representation. See, e.g., Martinez v. Court of Appeal of Cal., 528 U.S.

152, 161-62 (2000); United States v. Mackovich, 209 F.3d 1227, 1236-37 (10th Cir. 2000);

United States v. Singleton, 107 F.3d 1091, 1102 (4th Cir. 1997). As stated by the United

States Supreme Court, “it is clear that it is representation by counsel that is the standard, not

the exception.” Martinez v. Court of Appeal of Cal., 528 U.S. at 161. In accordance

therewith and given the mutually exclusive nature of the rights, we have observed that

“[c]ourts should indulge every presumption against waiver of the right to counsel.” Lovin

v. State, 286 S.W.3d at 288 n.15.

For a defendant to exercise his or her right of self-representation at the trial stage of

the proceedings, (1) a defendant must make the request in a timely manner, (2) the assertion

of the right of self-representation must be clear and unequivocal, and (3) the assertion of the

right of self-representation must reflect a knowing and intelligent waiver of the right to

counsel. State v. McCary, 119 S.W.3d 226, 256 (Tenn. Crim. App. 2003); State v. Herrod,

754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988); see also United States v. Bush, 404 F.3d

263, 271 (4th Cir. 2005); United States v. Mackovich, 209 F.3d at 1236; W. Mark Ward,

Tennessee Criminal Trial Practice § 8:4, at 220 (2009) (“Ward, Tennessee Criminal Trial

Practice”). In accordance with Tenn. R. Crim. P. 44(b)(1)(A), before accepting a

defendant’s waiver of the right to counsel, the trial court must “advise the accused in open

court of the right to the aid of counsel at every stage of the proceedings.” The Court must

also “determine whether there has been a competent and intelligent waiver of such right by

inquiring into the background, experience, and conduct of the accused, and other appropriate

matters.” Tenn. R. Crim. P. 44 (b)(1)(B). The defendant must waive his or her right to

counsel in writing, Tenn R. Crim. P. 44(b)(2), and this writing must be included in the

record, Tenn. R. Crim. P. 44(b)(3).

Even where the invocation of the right of self-representation meets these

requirements, the effectiveness of the defendant’s invocation and waiver is not necessarily

a foregone conclusion. The right of self-representation is not absolute. Indiana v. Edwards,

554 U.S. 164, ___, 128 S. Ct. 2379, 2384 (2008). Among other limitations, the United States

Supreme Court has recognized the absence of a right of self-representation when a defendant

seeks to abuse the dignity of the courtroom or to engage in serious obstructionist misconduct.

Indiana v. Edwards, 554 U.S. at ___, 128 S. Ct. at 2384. Defendants are “not entitled to use

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the right of self-representation as a tactic for delay, for disruption, for distortion of the

system, or for manipulation of the trial process.” United States v. Mosley, 607 F.3d 555, 558

(8th Cir. 2010) (internal quotation omitted); see also United States v. Frazier-El, 204 F.3d

553, 560 (4th Cir. 2000).

The trial court’s conclusion that Mr. Hester should not be permitted to exercise his

right of self-representation based on its concern regarding Mr. Hester’s lack of understanding

of substantive and procedural law and on its belief that Mr. Hester would not be a competent

or effective advocate was error. In general, “the competence that is required of a defendant

seeking to waive his right to counsel is the competence to waive the right, not the

competence to represent himself.” Godinez v. Moran, 509 U.S. 389, 399 (1993); State v.

Connor, 973 A.2d 627, 646 (Conn. 2009); State v. Campbell, 983 So. 2d 810, 853 (La. 2008).

The United States Supreme Court has declared that “a criminal defendant’s ability to

represent himself [or herself] has no bearing upon his [or her] competence to choose self-

representation.” Godinez v. Moran, 509 U.S. at 400.

The United States Supreme Court has recently carved out what at present is a narrow

exception that “permits19 States to insist upon representation by counsel for those competent

enough to stand trial . . . but who still suffer from severe mental illness to the point where

they are not competent to conduct trial proceedings by themselves.” Indiana v. Edwards, 554

U.S. at ___, 128 S. Ct. at 2388 (footnote added).20 However, in general, an accused’s lack

of capacity to present an effective defense is not a basis for denying the exercise of the right

of self-representation. See State v. Herrod, 754 S.W.2d at 630; see, e.g., Faretta v.

California, 422 U.S. at 836; Hirschfield v. Payne, 420 F.3d 922, 928 (9th Cir. 2005); State

v. Black, 223 S.W.3d 149, 155 (Mo. 2007); Vanisi v. State, 22 P.3d 1164, 1172 (Nev. 2001).

A trial court may properly conclude that a defendant is likely to be incompetent and

ineffective as an advocate in his or her own defense and that the defendant lacks important

knowledge about substantive and procedural law; however, these conclusions, without more,

do not render the defendant incompetent or unable to waive the right to counsel.

Deficiencies in legal skills and legal knowledge do not deprive a person of his or her right

to self-representation.

19

United States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009) (addressing the Indiana v. Edwards

decision, the Seventh Circuit noted that “[t]he Constitution may have allowed the trial judge to block [the

defendant’s] request to go it alone, but it certainly didn’t require it.”). The issue of whether the Tennessee

Constitution would permit an exception from the right to self-representation for those “competent enough

to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to

conduct trial proceedings by themselves” is not before the Court in the present case. See Indiana v. Edwards,

554 U.S. at ___, 128 S. Ct. at 2388.

20

The United States Supreme Court “repeatedly cabined its holding with phrases like ‘mental

derangement,’ ‘gray-area defendant,’ ‘borderline-competent criminal defendant,’ and, of course, ‘severe

mental illness.’” United States v. Berry, 565 F.3d at 391 (citations omitted).

-27-

Nor does the trial court’s reliance upon the special circumstances of a capital

proceeding alter this conclusion. While the trial court’s added concern for assuring that Mr.

Hester is competently represented in a capital case is understandable, it was error to prevent

Mr. Hester from exercising his right to self-representation on this basis. A defendant does

not lose his or her right to self-representation because he is being tried for a capital offense.

See, e.g., Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999); State v. Mems, 190 S.E.2d

164, 173 (N.C. 1972); Commonwealth v. Davido, 868 A.2d 431, 444 (Pa. 2005); State v.

Brewer, 492 S.E.2d 97, 98-99 (S.C. 1997).

As for the trial court’s concern about Mr. Hester’s communication difficulties, there

is “some authority to support a denial of self-representation where a mental or physical

disability renders a defendant unable to communicate in an understandable manner.” 3

Lafave, Criminal Procedure § 11.5(d), at 756-57; see, e.g., Savage v. Estelle, 924 F.2d 1459,

1464 (9th Cir. 1991); People v. Watkins, 8 Cal. Rptr. 2d 5, 7-8 (Ct. App. 1992). However,

the correctness of these decisions is a matter of some dispute. Some have asserted that these

decisions “rest on a misunderstanding of Faretta,21 as they go far beyond assessing the

character of defendant’s waiver.” 3 LaFave, Criminal Procedure § 11.5(d), at 757-58

(footnote added). Additionally, the United States Supreme Court declined the State of

Indiana’s invitation “to adopt, as a measure of a defendant’s ability to conduct a trial, a more

specific standard that would ‘deny a criminal defendant the right to represent himself at trial

where the defendant cannot communicate coherently with the court or a jury.’” Indiana v.

Edwards, 554 U.S. at ___, 128 S. Ct. at 2388.

Similarly, we do not foreclose the possibility that a defendant’s communication skills

may be so limited or impaired that they cannot be appropriately accommodated using means

less restrictive than declining to allow a defendant to exercise his or her right of self-

representation. This case, however, does not present circumstances requiring serious

consideration of this question.

The record lacks sufficiently detailed factual findings that might justify preventing

Mr. Hester from exercising his right of self-representation. Mr. Hester was able to

communicate using a voice amplifier that rendered his voice able to be heard. Furthermore,

the record does not demonstrate that the limitations on Mr. Hester’s ability to organize his

thoughts and to communicate them is so impaired as to justify denying him his right of self-

representation.

21

“The seminal decision on the right to proceed in propria persona in criminal cases is Faretta v.

California . . . .” Stephan Landsman, The Growing Challenge of Pro Se Litigation, 13 Lewis & Clark L. Rev.

439, 450 (2009).

-28-

Accordingly, the trial court’s concerns about Mr. Hester’s lack of knowledge of

substantive and procedural law and Mr. Hester’s lack of competence as a communicator and

advocate do not support the trial court’s denial of Mr. Hester’s request to represent himself.

However, the trial court cited one more ground for its decision. It found that Mr. Hester was

trying to manipulate the judicial system in order to circumvent the trial court’s order

appointing Ms. Parton as his lead counsel. We understand the trial court’s ruling as

reflecting its conclusions that Mr. Hester was trying to manipulate the process to obtain a

new lawyer or to have Mr. Heinsman reappointed as lead counsel and that Mr. Hester did not

have a genuine desire or intent to represent himself at trial.

This reasoning presents a difficult quandary and a close issue. As previously noted,

defendants are “not entitled to use the right of self-representation as a tactic for delay, for

disruption, for distortion of the system, or for manipulation of the trial process.” See, e.g.,

United States v. Mosley, 607 F.3d at 558 (internal quotation omitted); see also United States

v. Frazier-El, 204 F.3d at 560. Defendants, however, are free to seek to invoke a right of

self-representation as an alternative should their request for the appointment of a different

attorney be denied. See, e.g., State v. Blom, 682 N.W.2d 578, 613 (Minn. 2004); Gallego v.

State, 23 P.3d 227, 236 (Nev. 2001).

Disingenuous invocations of the right of self-representation that are designed to

manipulate the judicial process constitute an improper tactic by a defendant and are not

entitled to succeed. United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982). A court may

deny a manipulative request for self-representation, distinguishing between a genuine desire

to invoke a right of self-representation and a manipulative effort to frustrate the judicial

process. See United States v. Bush, 404 F.3d at 271; United States v. Frazier-El, 204 F.3d

at 560; Edwards v. Commonwealth, 644 S.E.2d 396, 400 (Va. Ct. App. 2007); cf. People v.

Marshall, 931 P.2d 262, 272 (Cal. 1997) (noting that “one of the trial court’s tasks when

confronted with a motion for self-representation is to determine whether the defendant truly

desires to represent himself or herself”).

Based on our review of the relevant portions of the record, we have concluded that

the trial court did not commit constitutional error by denying Mr. Hester’s request to

represent himself after the trial court declined to reinstate Mr. Heinsman as his lead counsel.

We base this decision on five conclusions. First, the record supports the trial court’s finding

that Mr. Hester was using his request to represent himself as a means to challenge the trial

court’s ruling that Ms. Parton, rather than Mr. Heinsman, would be his lead counsel. Second,

the evidence does not preponderate against the trial court’s conclusion that Mr. Hester did

not have any genuine interest in exercising his right to self-representation and was instead

requesting to represent himself as a manipulative and retaliatory tactic. Third, Mr. Hester

stated during the February 10, 2005 hearing that he did not actually plan to represent himself

at trial if he was able to find another private attorney to represent him. Fourth, Mr. Heinsman

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eventually replaced Ms. Parton as Mr. Hester’s lead counsel without any objection or further

requests for self-representation by Mr. Hester. Fifth, we are wary of creating incentives for

defendants to use a request for self-representation as a subterfuge when they lack a genuine

desire or intent to represent themselves.

V.

T HE D ENIAL OF M R. H ESTER’S R EQUEST FOR A C ONTINUANCE

Mr. Hester asserts that the trial court erred by denying his motion to continue the trial

after the court permitted one of his two lawyers to withdraw from the case approximately one

week before trial. Even though he conceded that the lawyer appointed to replace the

withdrawn lawyer had done a “good job,” Mr. Hester, stressing the importance of a second

attorney in a capital case, insisted that a week was insufficient to enable the new lawyer to

prepare for a capital proceeding. The Court of Criminal Appeals found that the trial court

did not abuse its discretion by denying Mr. Hester’s request for a continuance. We reach the

same conclusion.

On September 9, 2004, the trial court removed Mr. Heinsman as Mr. Hester’s lead

counsel and replaced him with Ms. Parton who had been serving as co-counsel. At this point,

Mr. Heinsman had been lead counsel for Mr. Hester for almost three years. Mr. Hester

objected to this action and actively resisted this ruling, as discussed above, for the next five

months.

A dispute existed between August 2004 and February 2005 regarding Mr. Heinsman’s

and Ms. Parton’s respective roles on Mr. Hester’s defense team. On February 25, 2005, Ms.

Parton moved to withdraw as counsel for Mr. Hester based on advice she had received from

the Board of Professional Responsibility.

On February 28, 2005, the trial court convened a hearing on Ms. Parton’s motion. The

State was not present at this hearing at the request of the defense. Ms. Parton revealed at this

hearing that (1) Mr. Hester did not accept the trial court’s decision to designate her rather

than Mr. Heinsman as his lead counsel, (2) during a February 25, 2005 meeting with Mr.

Hester without Mr. Heinsman being present, Mr. Hester intimidated her and made death

threats against her family, (3) Mr. Hester had declined to work with her in any meaningful

capacity, (4) Mr. Hester regularly cursed her, and (5) Mr. Hester had stomped out of meetings

with her in fits of rage. Ms. Parton stated that she had been “mentally . . . affected by [Mr.

Hester’s] comments” threatening her family and that she believed that Mr. Hester blamed her

for the trial court’s decision to replace Mr. Heinsman as lead counsel. She concluded by

observing that “realizing fully that we’re a mere one week away from trial, [the threat to

have her family killed] of course could be a ploy on Mr. Hester’s part to finally and

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decisively . . . be rid of me as counsel in his case. If so, . . . I have reached my point of no

return. I have my limits, and they were reached . . . .”

In answer to the trial court’s questions, Mr. Hester stated that he was “agreeing with

. . . [Ms. Parton] to withdraw.” For his part, Mr. Heinsman voiced no objection to Ms. Parton

withdrawing as counsel for Mr. Hester. The trial court concluded that Mr. Hester’s threats

against Ms. Parton and her family were the result of the court’s decision to replace Mr.

Heinsman with Ms. Parton and were part of Mr. Hester’s efforts to achieve his goal of having

Mr. Heinsman as his lead counsel. Nevertheless, the trial court permitted Ms. Parton to

withdraw and designated Mr. Heinsman as Mr. Hester’s lead counsel. The trial court also

reminded parties that trial was set to begin in eight days.

The trial court also determined that Mr. Hester had “waived his right to his second

lawyer at a trial” based on his conduct with Ms. Parton. In response to Mr. Heinsman’s

request for yet another continuance, the trial court stated, “you’ve had . . . three years on this

case, $150,000.00 plus attorney fees? You’ve got to be ready for trial next Tuesday, nine

o’clock . . . . I’ll give you an opportunity to recruit someone to assist you and . . . I’ll approve

it. But otherwise . . . let’s . . . be ready to go at nine o’clock Tuesday morning.” The trial

court filed two orders on March 2, 2005 confirming its decision to permit Ms. Parton to

withdraw, designating Mr. Heinsman as lead counsel, and appointing Lee Davis as co-

counsel for Mr. Hester. As scheduled, the trial commenced with jury selection on March 8,

2005.

Decisions regarding a request for a continuance are discretionary ones. State v.

Thomas, 158 S.W.3d 361, 392 (Tenn. 2005) (appendix); State v. Robinson, 146 S.W.3d 469,

517 (Tenn. 2004) (appendix); State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004). Reviewing

courts will not overturn these decisions in the absence of a finding of an abuse of discretion

and proof that the denial of the continuance either deprived the defendant of a fair trial or

caused an outcome that would not have occurred had the continuance been granted. State

v. Rimmer, 250 S.W.3d 12, 40 (Tenn. 2008) (appendix); State v. Odom, 137 S.W.3d at 589.

A trial court abuses its discretion when it applies incorrect legal standards, reaches an

illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence, or

employs reasoning that causes an injustice to the complaining party. Konvalinka v.

Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008).

Tenn. Sup. Ct. R. 13 § 3(b)(1) states that “[t]he court shall appoint two attorneys to

represent a defendant at trial in a capital case.” As valuable as two attorneys may be in a

capital case, this is not a rule of constitutional dimension. Defendants facing the death

penalty do not have a per se constitutional right to the assistance of two attorneys. Bell v.

Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Arrington v. State, 687 S.E.2d 438, 448 (Ga.

-31-

2009); Davis v. State, 743 So. 2d 326, 340-41 (Miss. 1999). Mr. Hester has shown no

constitutional basis that would require a second attorney in this particular case.

When Mr. Hester threatened the lives of Ms. Parton and her family, he engaged in

serious misconduct on the eve of his long-delayed trial. The trial court found that Mr.

Hester’s actions were in response to its earlier decision to designate Ms. Parton as his lead

counsel and were calculated to manipulate the judicial process to remove Ms. Parton as lead

counsel and to replace her with Mr. Heinsman and to cause further delay.

When Mr. Heinsman moved for another continuance in order to find another lawyer

and to enable this lawyer to prepare for trial, the trial court considered (1) that Mr. Heinsman

had already served as Mr. Hester’s lead counsel for approximately three years, (2) this case

had already encountered lengthy delays, many of which were caused by the defense, (3) that

the conduct immediately causing this request for continuance was Mr. Hester’s intentionally

disruptive conduct directed at Ms. Parton and her family, and (4) that Mr. Hester’s conduct

was directed at countermanding a court order through a threat of violence. In light of these

circumstances, the non-constitutional nature of Mr. Hester’s right to the assistance of a

second lawyer at trial, and the dearth of evidence or authority presented by Mr. Hester

requiring a different conclusion, we find no abuse of discretion by the trial court when it

declined to grant Mr. Hester’s request for a continuance.

VI.

M CM INN C OUNTY’S U SE OF A L IST OF I TS R ESIDENTS P OSSESSING D RIVER’S

L ICENSES AS THE S OURCE OF N AMES FOR ITS J URY V ENIRES

Mr. Hester insists that Tenn. Code Ann. § 22-2-302(d) (1994) required McMinn

County to combine its driver’s license list with tax record lists in formulating a master jury

list. After careful study of the parties’ briefs on this issue, we are persuaded that the decision

of the Court of Criminal Appeals on this issue should be affirmed. Moreover, because we

find that the opinion of the Court of Criminal Appeals, State v. Hester, 2009 WL 275760, at

*16, adequately states the facts and the law on this issue, we adopt this portion of the opinion

as the opinion of this Court and include it as an appendix to this opinion.

VII.

M CM INN C OUNTY’S P ROCESS FOR S ELECTING J URY V ENIRES

Mr. Hester asserts that the process used by McMinn County to select jury venires

resulted in systematic, unconstitutional exclusion of the elderly, African-Americans, and

Hispanics. While the Court of Criminal Appeals recognized that Mr. Hester had the right to

have his jury selected from a fair cross-section of the community, it determined that age

groups do not qualify as constitutionally significant distinct groups within a community. It

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also concluded that Mr. Hester failed to establish that the jury venire was not randomly

selected or that either African-Americans or Hispanics were not fairly or reasonably

represented on McMinn County’s venires in relation to their number in the community. We

conclude that Mr. Hester has failed to carry his burden of establishing a prima facie case of

a violation of the Sixth Amendment’s fair cross-section requirement.

A.

We note at the outset that the trial court conducted the hearing regarding Mr. Hester’s

challenges to the process used by McMinn County to select jury venires on September 10,

2003 and that Mr. Hester’s trial did not begin until March 8, 2005. Much of the evidence Mr.

Hester presented at the September 10, 2003 hearing related to the venire that was ordered to

report for jury service on June 9, 2003.22 The jury that was actually seated for Mr. Hester’s

trial was not selected from this venire. Because of the length of the interval between the

September 10, 2003 hearing and the trial, the jury for Mr. Hester’s trial was selected from

a venire that was called for jury service on December 2, 2003.

The trial court apprised Mr. Hester’s defense team that the challenge to the selection

of the jury venire was “premature on the jury that’s [going to] try [Mr. Hester].” However,

following the September 10, 2003 hearing, Mr. Hester’s defense team did not attempt to

obtain or present evidence regarding the process that McMinn County used to select the

December 2, 2003 venire or to obtain a complete list of the persons summoned for this

venire. Instead, the defense team waited until the afternoon before jury selection was

scheduled to begin to challenge the process for selecting the December 2, 2003 venire.23

The September 10, 2003 hearing focused on the jury venire that was called for service

on June 9, 2003. This venire was obtained from a list of names of persons holding driver’s

licenses using software provided to McMinn County by Local Government Data Processing

Corporation and information provided by the Tennessee Department of Safety.

When an individual obtains a Tennessee driver’s license or identification card, they

receive a card with a distinctive number. The licenses and cards are issued in sequential

numerical order. Thus, cards with lower numbers were issued before cards with higher

numbers. When called upon to provide information to assist counties in selecting a jury

venire, the Department of Safety uses these distinctive numbers to prepare a list of all drivers

within a particular county who have a valid driver’s license and who are eighteen years of

22

In addition, much of the evidence presented at the September 10, 2003 hearing did not relate

directly to the grand jury that indicted Mr. Hester in 1999.

23

Mr. Hester concedes in his appellate brief that this challenge to the jury venire was “hastily filed

. . . on the eve of trial.”

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age or older. Local Government Data Processing Corporation converts the data provided by

the Department of Safety into a form that can be used by its software to electronically

generate a jury venire.

McMinn County selects jury venires twice each year using the data obtained from the

Department of Safety.24 In this process, the county first excludes from consideration the

individuals on the list with the two thousand lowest driver’s license numbers.25 Then the

county determines the number of persons to be summoned to serve on the jury venire. Using

these two numbers, the county’s software then calculates the number that will be used as the

increment for selecting names from the list.26

McMinn County determined that 700 persons would be summoned for jury service

on the June 9, 2003 venire. Accordingly, the software divided the number of individuals on

the county driver’s license list, excluding the first two thousand names, by 700 and derived

the number 47. The number 10 was then selected and subtracted from 47 producing the

number 37 which was then used as the increment for selecting the potential jurors from the

list. Accordingly, the software selected the jury venire to be summoned on June 9, 2003 by

picking every thirty-seventh name from the list of McMinn County residents with a driver’s

license, excluding the first two thousand names. As a result of this process, not only were

the names of the first two thousand persons on the driver’s license list excluded from

24

Despite the evidence that McMinn County selects jury venires two times a year, there is no

question that Mr. Hester’s jury was selected from the venire that was chosen on December 2, 2003. The

record contains no evidence regarding whether or how jury venires were selected in 2004 or why Mr.

Hester’s jury was chosen from the December 2, 2003 venire. This decision may well have been the result

of the problems experienced with distributing the jury questionnaires that were prepared for this trial. In any

event, the December 2, 2003 venire was validly available for use for two years after it was chosen. Tenn.

Code Ann. § 22-2-302(a)(1), (3). This provision is currently codified at Tenn. Code Ann. § 22-2-301(b)

(2009) (addressing master lists generated by automated means) and Tenn. Code Ann. § 22-2-302(2)(C)

(2009) (addressing master lists generated by an alternate method).

25

The practice of excluding the persons with the two thousand lowest driver’s license numbers began

when an earlier use of the software produced a jury venire exclusively comprised of persons over sixty-five

years of age. The county decided to remedy this problem by excluding for consideration for jury service the

persons with the two thousand lowest driver’s license numbers. Because these persons possessed the lowest

driver’s license numbers, they presumably were older because they had possessed their driver’s licenses for

a longer period of time.

26

The increment is derived in two steps. First, the software divides the number of the names

remaining on the driver’s license list after the first two thousand names have been excluded. Second, another

number is subtracted from the result of the first calculation to produce the increment.

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consideration, the last seven thousand names on the list were likewise excluded from

consideration.27

Mr. Hester presented evidence that at the time the June 9, 2003 venire was chosen,

4.5% of McMinn County’s population was African-American and 1.8% was Hispanic. He

also presented evidence that the June 9, 2003 venire was chosen from a portion of McMinn

County’s driver’s license list that was only 3.8% African-American and .38% Hispanic. In

addition, he proved that the county’s decision to skip the first two thousand persons on the

list had the effect of excluding the oldest and whitest group of persons on the list.28

Likewise, he proved that the second group that was skipped – the last seven thousand names

on the list – included the youngest and most racially diverse residents in the county.29

Mr. Hester did not present evidence regarding the increment used to select the persons

included on the December 2, 2003 jury venire. However, his evidence regarding the

demographics of the persons on this venire highlighted differences between the makeup of

the December 2, 2003 venire and the June 9, 2003 venire. The December 2, 2003 venire

included 3.4% African-Americans and 0% Hispanics, and it included more young persons

than the June 9, 2003 venire.30 However, the percentage of African-Americans and

Hispanics included on the December 2, 2003 venire was less than the percentage of these two

groups on the June 9, 2003 venire.31 The December 2, 2003 venire included only .3% of

persons over the age of 75 despite the fact that 8.6% of the county’s population and 7.3% of

the persons on the county’s driver’s license list were over the age of 75.

In broad strokes, Mr. Hester asserts that the manner in which McMinn County selects

its jury venires is flawed by “persistent structural defects” attributable to its jury

commissioners and its use of the same “non-random methodology.” Regrettably, his

evidence with regard to both the June 9, 2003 venire and the December 2, 2003 venire is

limited and incomplete. Based on the evidence presented at the September 2003 hearing, it

27

McMinn County’s list, excluding the first two thousand persons, contained approximately 32,900

names. The software was able to produce a list of 700 persons using the first 25,900 names on the list and,

therefore, did not consider the remaining names on the list.

28

These persons were 98% white, and their average age was 76.9.

29

The persons in the second group included 4.2% African-Americans and 8.4% Hispanics, and their

average age was 34.3.

30

The June 9, 2003 venire included .7% of persons between the ages of 20 and 24; while the

December 2, 2003 venire included 3.4%.

31

The percentage of African-Americans had decreased from 3.8% to 3.4%, and the percentage of

Hispanics had decreased from 1% to 0%.

-35-

appears that McMinn County may not be using a statistically proportionate drawing from its

driver’s license lists to select venires. However, the question before us now is whether Mr.

Hester has made out a prima facie case that the methodology employed by McMinn County

to select the jury venire from which his jury was drawn violated his constitutional right to a

jury composed of a fair cross-section of the community.

B.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed.”

Interpreting this constitutional provision, the United States Supreme Court has held that “the

American concept of the jury trial contemplates a jury drawn from a fair cross section of the

community” and “that the selection of a petit jury from a representative cross section of the

community is an essential component of the Sixth Amendment right to a jury trial.” Taylor

v. Louisiana, 419 U.S. 522, 527-28 (1975). The Court concluded that “the jury wheels, pools

of names, panels, or venires from which juries are drawn must not systematically exclude

distinctive groups in the community and thereby fail to be reasonably representative thereof.”

Taylor v. Louisiana, 419 U.S. at 538. However, the Court expressly declared that defendants

are not entitled to a jury of any particular composition because the fair cross-section

requirement does not impose a requirement that the jury actually chosen mirror the

community or reflect the various distinctive groups in the population. Taylor v. Louisiana,

419 U.S. at 538; 3 David S. Rudstein et al., Criminal Constitutional Law § 14.07[3], at 14-67

(2009) (“Rudstein, Criminal Constitutional Law”).

For a defendant to establish a prima facie case of a violation of the fair cross-section

requirement, he or she

must show (1) that the group alleged to be excluded is a

“distinctive” group in the community; (2) that the representation

of this group in venires from which juries are selected is not fair

and reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Accordingly, “a defendant raising a cross

section objection can prevail without showing purposeful discrimination.” 6 LaFave,

Criminal Procedure § 22.2(d), at 59. If the defendant establishes “a prima facie case of a fair

cross-section violation, the burden shifts to the government to rebut that case.” Rudstein,

Criminal Constitutional Law § 14.07[3], at 14-78.

-36-

C.

McMinn County excluded a disproportionate number of persons 75 years of age or

older when it decided not to consider the first two thousand names on its driver’s license list.

While Mr. Hester concedes, as he must, that he “has found no authority identifying old age

or youth as a ‘distinctive group’ for cross-section analysis purposes,” he requests this Court

to be more exacting in its review because McMinn County’s jury selection formula was

designed purposefully to exclude these older citizens. We conclude that the exclusion of

persons age 75 or older in the present case is not of constitutional import for purposes of the

fair cross-section requirement.

The record supports Mr. Hester’s assertion that McMinn County was purposefully

excluding older residents. The county’s decision to skip the first two thousand names on the

list was motivated by its desire to prevent the jury venires from being overwhelmingly or

exclusively composed of senior citizens. Not all purposeful exclusion of individuals sharing

a common trait is inherently unconstitutional or improper32 nor is purposeful exclusion

necessary to establish a violation of the fair cross-section requirement. However, we agree

with Mr. Hester that evidence of purposeful exclusion of any group should prompt the courts

to more closely inspect challenged jury selection procedures to make sure that they did not

deprive a defendant of a jury composed of a fair cross-section of the community through

unconstitutional systematic exclusion.33

32

Purposeful exclusion based upon certain traits, such as race or gender, is per se unconstitutional.

See, e.g., Lockhart v. McCree, 476 U.S. 162, 175 (1986). However, wholesale purposeful exclusion based

on other common traits may be entirely appropriate and warranted. For example, the State of Tennessee

excludes from jury service those who are under the age of eighteen and non-citizens. Tenn. Code Ann. §

22-1-101 (2009). The purposeful wholesale exclusion of juveniles, In re J.K.B., 552 N.W.2d 732, 733

(Minn. Ct. App. 1996), or non-citizens, Foley v. Connelie, 435 U.S. 291, 296 (1978); see also 3 Austin T.

Fragomen et al., Immigration Law & Business § 8:11 (2010), does not constitute a violation of a defendant’s

right to a jury composed of a fair cross-section of the community, even though such groups may be sizeable

in a given community.

33

It is not necessary that purposeful discrimination be shown for a fair cross-section constitutional

violation to be established. 6 LaFave, Criminal Procedure § 22.2(d), at 59. However, “[i]nstead of

discriminatory intent, a party raising a fair cross-section claim must prove a causal connection between the

under representation and the jury selection process. The under representation must be ‘due to’ the operation

of the selection system, not happenstance.” Robin E. Schulberg, Katrina Juries, Fair Cross-Section Claims,

and the Legacy of Griggs v. Duke Power Co., 53 Loy. L. Rev. 1, 14-15 (2007) (footnotes omitted). Thus,

for example, discrepancies resulting from the private choices of individuals to ignore jury summonses do not

exemplify the type of constitutional infirmity contemplated in Duren v. Missouri. United States v. Orange,

447 F.3d 792, 800 (10th Cir. 2006). Alternatively, purposeful wholesale exclusion of certain groups

potentially raises greater concerns relating to the appearance of injustice, which is among the underlying

foundations of the fair cross-section requirement. See Lockhart v. McCree, 476 U.S. at 175. Additionally,

(continued...)

-37-

In general, courts have concluded that under-representation or even total exclusion of

certain age groups does not constitute a violation of the fair cross-section requirement

because age categories are not considered to constitute a “distinctive group in the

community.” Accordingly, exclusion on this basis fails to satisfy the first prong of the fair

cross-section test. See State v. Blunt, 708 S.W.2d 415, 417-18 (Tenn. Crim. App. 1985); see,

e.g., Silagy v. Peters, 905 F.2d 986, 1010-11 (7th Cir. 1990); Stewart v. Carroll, 154 P.3d

382, 385-86 (Ariz. Ct. App. 2007); Ewing v. State, 719 N.E.2d 1221, 1226 (Ind. 1999);

Commonwealth v. Evans, 778 N.E.2d 885, 893 (Mass. 2002).

In endeavoring to ascertain what constitutes a constitutionally “distinctive group in

the community” for purposes of the fair cross-section requirement, the United States

Supreme Court has observed that “[c]ommunities differ at different times and places. What

is a fair cross section at one time or place is not necessarily a fair cross section at another

time or a different place.” Taylor v. Louisiana, 419 U.S. at 537.34 The Supreme Court,

however, has declined to offer a definition of what constitutes a constitutionally significant

distinctive group in the community for purposes of the fair cross-section requirement, and

so the concept remains extremely elusive. James Gobert, Jury Selection: The Law, Art and

Science of Selecting a Jury § 6:16 (2009) (hereinafter “Gobert, Jury Selection”). In Thiel v.

Southern Pacific Co., 328 U.S. at 220, the Supreme Court viewed the concept in terms of

“economic, social, religious, racial, political and geographical groups of the community.”

Subsequently, the Court appeared to more closely associate the concept with national origin,

race, and gender. Lockhart v. McCree, 476 U.S. at 175.

Perhaps the most comprehensive understandings of the concept have been offered by

Justice Frankfurter in his dissenting opinion in Thiel v. Southern Pacific Co. and by the

United States Court of Appeals for the Eleventh Circuit.35 Justice Frankfurter cast the

concept in terms of holding “a different social outlook,” having “a different sense of justice,”

and maintaining “a different conception of a juror’s responsibility.” Thiel v. Southern Pac.

Co., 328 U.S. at 230 (Frankfurter, J., dissenting). The United States Court of Appeals for the

Eleventh Circuit has defined the concept in terms of three critical components:

33

(...continued)

in one of the foundational cases on the fair cross-section requirement, the United States Supreme Court

observed that a fair cross-section does not require that “every jury must contain representatives of all the

economic, social, religious, racial, political and geographical groups of the community . . . . But it does mean

that prospective jurors shall be selected by court officials without systematic and intentional exclusion of

any of these groups.” Thiel v. Southern Pac. Co., 328 U.S. 217, 220 (1946).

34

An example of the United States Supreme Court’s observation is perhaps well represented by the

experiences of Lewis County with excluding members of “The Farm” from serving on juries. See generally

State v. Nelson, 603 S.W.2d 158, 160-67 (Tenn. Crim. App. 1980).

35

Gobert, Jury Selection § 6:16.

-38-

(1) that the group is defined and limited by some factor (i.e., that

the group has a definite composition such as by race or sex); (2)

that a common thread or basic similarity in attitude, ideas, or

experience runs through the group; and (3) that there is a

community of interest among members of the group such that

the group’s interests cannot be adequately represented if the

group is excluded from the jury selection process.

Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir. 1983).

While an age-based exclusion could, in theory, constitute the exclusion of a

constitutionally distinctive group in the community,36 we find no support in this record for

the conclusion that the disproportionate exclusion of persons over the age of 75 from

McMinn County juries constituted the exclusion of a distinctive group in that community.

The record in this case reflects that the jury venires include a proportionate number of

persons between the ages of 60 and 74. Simply stated, there is no evidence to support the

conclusion that the differences between persons aged 60 to 74 and those over the age of 75

is substantial in terms of “attitude, ideas, or experience” or that interests of the excluded

group are left unrepresented. Additionally, there is no evidence that persons falling on

opposite sides of this age divide are significantly different in their social outlook, their sense

of justice, or their concept of a juror’s responsibility. Accordingly, we find no basis for

concluding that McMinn County’s purposeful exclusion from the jury venire of persons over

the age of 75 constituted the exclusion of a constitutionally significant distinctive group

within the community for purposes of the Sixth Amendment’s guarantee of a jury composed

of a fair cross-section of the community.

D.

We need not tarry long on whether African-Americans and Hispanics are “distinctive

groups in the community” for the purpose of the fair cross-section requirement. Today, it is

beyond reasoned debate that they are.37 Rather, our task is to determine whether Mr. Hester

has met the second and third prongs of the fair cross-section requirement. Thus, we must

determine whether Mr. Hester has demonstrated that the representation of either Hispanics

36

This Court has observed that it is theoretically possible to demonstrate that an age-based exclusion

constituted the removal of a constitutionally significant distinct group within the community but has

mandated an evidentiary showing to support such a contention. See State v. Thompson, 768 S.W.2d 239, 246

(Tenn. 1989). No such showing was made in the present case.

37

See, e.g., United States v. Rodriguez-Lara, 421 F.3d 932, 941 (9th Cir. 2005); United States v.

Wheeler, 79 F. App’x 656, 661 (5th Cir. 2003); United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001);

United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).

-39-

or African-Americans “in venires from which juries are selected is not fair and reasonable

in relation to the number of such persons in the community” and whether the

underrepresentation is “due to systematic exclusion of the group in the jury-selection

process.” Duren v. Missouri, 439 U.S. at 364.

The Court of Criminal Appeals concluded that Mr. Hester failed to show that

representation of Hispanics and African-Americans in the jury venire met the second prong

of the fair cross-section requirement. It reasoned as follows:

According to the 2000 U.S. Census Bureau Data of record, the

makeup of McMinn County was 92.7% white, 4.5% black, and

1.8% Hispanic. The venire from which the defendant’s jury was

selected in December 2003 was 96.0% white, 3.4% black, and

0% Hispanic. Stated differently, of the 175 prospective jurors,

six were black, none were Hispanic, one was “other,” and the

rest were white. In our view, the slight disparity between the

numbers of prospective African American and Hispanic jurors

in the venire in relation to their numbers in the community is

statistically and legally insignificant, varying from just over one

percent with respect to African Americans and just under two

percent with respect to Hispanics. As this court has observed,

“[n]either the jury roll nor the venire panel need be a perfect

mirror of the community or accurately reflect the proportionate

strength of every identifiable group in the community.”

On the record presented, we conclude that the defendant

has failed to establish the second prong of the applicable test

under Duren by showing that either African Americans or

Hispanics were not fairly or reasonably represented in relation

to their number in the community.

State v. Hester, 2009 WL 275760, at *13-14 (citation omitted).

The approach utilized by the Court of Criminal Appeals assessed the absolute

disparity between African-Americans and Hispanics in the jury venire and the percentages

of each group in the population as recorded in the census for McMinn County. “The absolute

disparity is calculated by subtracting the percentage of the distinctive group on the venire

from the percentage in the population. Thus, if a distinctive group is 12% of the population

and 7% on the venire, the absolute disparity is 5%.” 4 Joel Androphy, White Collar Crime

§ 41:46 (2d ed. 2010). Absolute disparity measures “the difference between the

-40-

underrepresented group’s percentage in the jury-eligible population and the group’s

percentage in the actual jury venire.” People v. Anderson, 22 P.3d 347, 361 n.6 (Cal. 2001).

Mr. Hester insists that the Court of Criminal Appeals should have considered

comparative disparity of both Hispanics and African-Americans in the jury venire rather than

absolute disparity. To determine comparative disparity, the absolute disparity figure is

divided by the percentage of minority group members in the population. Sara Sun Beale et

al., Grand Jury Law and Practice § 3:18 (2d ed. 2009). Comparative disparity provides an

assessment of “the percentage by which the number of group members in the actual venire

falls short of the number of group members one would expect from the overall ‘eligible

population’ figures.” People v. Anderson, 22 P.3d at 361 n.6.

In its recent decision in Berghuis v. Smith, 559 U.S. ___, 130 S. Ct. 1382 (2010), the

United States Supreme Court was confronted with issues related to the proper way to

determine whether small minority groups are fairly and reasonably represented in accordance

with the second prong of the fair cross-section requirement. The United States Court of

Appeals for the Sixth Circuit had concluded that the primary and essential way to address this

issue is to analyze the comparative disparity of the small minority population on the jury

venire. The Supreme Court disagreed and concluded that there was no clearly established

law establishing the superiority of comparative disparity analysis for assessing the

under-representation of small minority groups. See Berghuis v. Smith, 559 U.S. at ___, 130

S. Ct. at 1392-96. To the contrary, the Supreme Court observed that both the absolute and

comparative disparity tests suffer from imperfections and are subject to being misleading in

addressing small minority populations. Berghuis v. Smith, 559 U.S. at ___, 130 S. Ct. at

1393.

Rather than fully embracing, as Mr. Hester recommends, the comparative disparity

approach for small minority populations, we find much to agree with in the approach adopted

by the Michigan Supreme Court and referenced in Berghuis v. Smith. The Michigan Supreme

Court observed that

[w]e thus consider all these approaches to measuring

whether representation was fair and reasonable, and conclude

that no individual method should be used exclusive of the

others. Accordingly, we adopt a case-by-case approach.

Provided that the parties proffer sufficient evidence, courts

should consider the results of all the tests in determining

whether representation was fair and reasonable.

-41-

People v. Smith, 615 N.W.2d 1, 3 (Mich. 2000).38

We are not persuaded that Mr. Hester has made out a prima facie case that the number

of African-Americans included on McMinn County’s jury venires is “not fair and reasonable

in relation to the number of such persons in the community.” Duren v. Missouri, 439 U.S.

at 364. The absolute disparity between the census figures and the representation of

African-Americans on the jury venire from which Mr. Hester’s jury was selected was only

1.1%, and the comparative disparity was only 24.4%. Out of the venire of 175 persons, it

could be anticipated that approximately eight of the potential jurors would be

African-American. The actual number was six. Given the relatively small size of the

African-American community in McMinn County, we conclude that Mr. Hester has failed

to make a prima facie showing that African-Americans were not fairly or reasonably

represented for purposes of the fair cross-section requirement in relation to the number of

African-Americans in the McMinn County community. See, e.g., United States v.

Chanthadara, 230 F.3d 1237, 1257 (10th Cir. 2000); United States v. Weaver, 267 F.3d 231,

241-44 (3d Cir. 2001); People v. Burgener, 62 P.3d 1, 22-23 (Cal. 2003).

Similarly, we are not persuaded that Mr. Hester has made out a prima facie case that

the under-representation of Hispanics on the jury venire was due to the systematic exclusion

of that group from the jury selection process. Duren v. Missouri, 439 U.S. at 364. While Mr.

Hester started to lay an evidentiary foundation for his claim that McMinn County, albeit

inadvertently, was systematically excluding Hispanics from its jury venires, he ultimately

failed to carry his burden.

Mr. Hester began to lay an evidentiary foundation for his systematic exclusion of

Hispanics claim by presenting evidence that a significant concentration of Hispanics possess

higher driver’s license numbers and that the process used to select the June 2003 jury venire

never considered a significant number of persons with higher driver’s license numbers.

However, he fell short by failing to present evidence relating to (1) the increment used to

select the December 2, 2003 venire, (2) the impact of that increment on the percentage of

Hispanics whose driver’s license numbers could have been included in the venire, and (3)

how the increment was determined.39

38

While the absolute disparity approach alone is more easily applied and less complex than assessing

the myriad of permutations of the comparative disparity test, relying on the absolute disparity test alone

would have the functional effect of excluding the representation of small minority groups from the

protections of the Sixth Amendment fair cross-section requirement. See, e.g., United States v. Shinault, 147

F.3d 1266, 1273 (10th Cir. 1998); United States v. Rogers, 73 F.3d 774, 776-77 (8th Cir. 1996).

39

Mr. Hester failed to present evidence as to how the number used for subtraction was determined.

-42-

The record shows the increment used to draw names from the driver’s license list

changes when a new venire is selected. These changes have a significant effect on the

drawing of names from the list. For example, when the increment is increased, a larger

percentage of the persons on the master list will be considered for jury service. Conversely,

when the increment is decreased, a smaller percentage of persons on the master list will be

considered. Thus, assuming that McMinn County’s Hispanic population generally is at the

end of the list because Hispanics disproportionately have higher driver’s license numbers,

increasing the increment will diminish the possibility that Hispanics will be excluded from

consideration. Alternatively, decreasing the increment will have a tendency to increase the

possibility that Hispanics will not be considered for jury service.

Mr. Hester presented no evidence regarding the process that was used to determine

the increment for selecting the December 2, 2003 venire. Thus, the record does not reveal

the increment that was used by the software to select the persons who were called for jury

duty on December 2, 2003. Without this evidence, the courts can only speculate about how

McMinn County’s use of a varying increment affected the representation of Hispanics on the

county’s jury venires. The burden to present evidence of a systematic under-representation

of a distinct group within the community fell squarely on Mr. Hester. He has failed to carry

his burden.

VIII.

C OMPLIANCE WITH T ENN. C ODE A NN. § 22-2-304(e) (1994)

Mr. Hester also asserts that the manner in which the jury venire was selected did not

comply with Tenn. Code Ann. § 22-2-304(e) (1994), which requires “that the selection of the

regular panel of grand and petit jurors be made by mechanical or electronic means in such

a manner as to assure proportionate distribution of names selected without opportunity for

the intervention of any human agency to select a particular name.”40 The Court of Criminal

Appeals did not agree. The Court of Criminal Appeals concluded McMinn County’s jury

selection system paralleled the approach approved by this Court in State v. Mann, 959

S.W.2d 503 (Tenn. 1997). The Court of Criminal Appeals also concluded that “the record

in this case fails to demonstrate that the venire was not randomly selected and resulted in the

systematic exclusion of certain groups of potential jurors on the basis of race or age.” State

v. Hester, 2009 WL 275760, at *16. The court’s reliance on State v. Mann is misplaced.

The methodology employed to select the venire that was at issue in State v. Mann

differed significantly from the methodology used by McMinn County in this case. In State

v. Mann, the Circuit Court Clerk testified

40

This provision is currently codified in a modified form at Tenn. Code Ann. § 22-2-304(a) (2009).

-43-

that his office selects the jury venire from a list of licensed

drivers in the county. Out of the total county population of

38,000 people, there are 28,000 licensed drivers. Members of

[the Clerk’s] office calculate the number of jurors required for

a two year period, which in this case was approximately 3,000.

They then divide the number of licensed drivers by the number

of jurors needed. The quotient determines the number of names

they will skip when they count down the alphabetical list of

28,000 licensed drivers to obtain 3,000 jurors.

State v. Mann, 959 S.W.2d at 535 (appendix).

The “quotient” in State v. Mann was determined by dividing the total number of

names on the list by the number of jurors needed. This quotient served essentially the same

purpose as the “increment” involved in this case. However, unlike the methodology used by

McMinn County in this case, Dyer County drew its names from the entire driver’s license list

rather than skipping large sections of the list. Accordingly, we cannot concur with the Court

of Criminal Appeals that the methodology utilized by McMinn County is the same

methodology that was approved of by this Court in State v. Mann.

Nor can we concur in the Court of Criminal Appeals’ conclusion that a violation of

Tenn. Code Ann. § 22-2-304 requires a showing of systematic exclusion. A showing of

systematic exclusion is an essential element of the constitutional test for showing a violation

of the Sixth Amendment requirement that a jury venire be composed of a fair cross-section

of the community. While Tenn. Code Ann. § 22-2-304(e)’s requirement of a “proportionate

distribution of names” should prevent a violation of the Sixth Amendment’s fair cross-

section requirement, it sets a more rigorous standard than the constitutional minimum of

avoiding systematic under-representation of distinct groups within the community.

The process employed by McMinn County did not violate Tenn. Code Ann. § 22-2-

304(e)’s requirement that the jury venires be compiled “without opportunity for the

intervention of any human agency to select a particular name.” The numbers utilized in the

process were reached through a formula that involved a random collection of names from the

driver’s license list rather than any human intervention in selecting particular names.

However, the formula utilized by McMinn County violates Tenn. Code Ann. § 22-2-

304(e)’s requirement that the means utilized “assure proportionate distribution of names

selected.” At least with regard to the June 9, 2003 venire, McMinn County excluded large

portions of the names on its master list. In doing so, it prevented a proportionate distribution

of names from being selected from that list.

-44-

As a general matter, a criminal defendant can mount a successful challenge to an

indictment or jury venire as a result of improper jury selection procedures only if the

defendant can demonstrate that he or she was prejudiced or that the improper procedures

resulted from purposeful discrimination or fraud. State v. Stephens, 264 S.W.3d 719, 731

(Tenn. Crim. App. 2007); see also State v. Reid, 91 S.W.3d 247, 291 (Tenn. 2002)

(appendix) (“There is nothing in the record to show that any prejudice resulted to the

Appellant by the manner of the selection process utilized.”).

In this case, however, Mr. Hester has failed to present evidence regarding the

increment that was actually used to obtain the venire in this case. Likewise, he failed to

present evidence addressing (1) the impact the process actually used by McMinn County to

select the jury venire had on the portion of the names on the master list that were considered

for jury service or (2) the percentage of Hispanics among the group that was not considered

for jury service. In the absence of proof of this sort, we are unable to ascertain either the

process that McMinn County actually employed in this case or the impact that this process

had on the composition of the jury venire in Mr. Hester’s case. The burden was upon Mr.

Hester to demonstrate any prejudice that he suffered as a result of the deviation from Tenn.

Code Ann. § 22-2-304(e)’s requirement that the methodology employed utilize a procedure

that assures a “proportionate distribution of names selected.” He has failed to carry this

burden.

Furthermore, Tenn. Code Ann. § 22-2-313 (1994) imposes a strict requirement that

[i]n the absence of fraud, no irregularity with respect to the

provisions of this part or the procedure thereunder shall affect

the validity of any selection of any grand jury, or the validity of

any verdict rendered by a trial jury unless such irregularity has

been specially pointed out and exceptions taken thereto before

the jury is sworn.41

We have carefully reviewed Mr. Hester’s pre-trial motion related to the jury venire in his

case. While he raised concerns regarding the representation of certain demographic groups,

Mr. Hester failed to “specially point[] out” to the trial court and take exception to the

methodology utilized by the trial court as being in violation of Tenn. Code Ann. § 22-2-

304(e)’s requirement that a “proportionate distribution of names [be] selected.” To the

contrary, the focus of Mr. Hester’s pre-trial motion was squarely upon the fair cross-section

requirement. See generally 10 David L. Raybin, Tennessee Practice: Criminal Practice and

Procedure § 25:14, at 434 (2008) (observing that fair cross-section constitutional argument

41

This provision is currently codified in a modified form at Tenn. Code Ann. § 22-2-313 (2009).

-45-

is a separate type of challenge than the technical statutory based violation in jury selection

procedures). Accordingly, we find that Mr. Hester is not entitled to relief upon this issue.

IX.

T HE D ENIAL OF M R. H ESTER’S R EQUEST TO R ETAIN AN E XPERT S TATISTICIAN

Mr. Hester takes issue with the trial court’s denial of his request for funds to retain an

expert in statistics and demographics to assist him in assembling “the required data to make

a prima [facie] showing of unconstitutional composition, and then to testify concerning this

data at an evidentiary hearing.” The Court of Criminal Appeals concluded that “[b]ecause

the defendant failed to show a particularized need for an expert statistician, the trial court did

not abuse its discretion in denying the request.” State v. Hester, 2009 WL 275760, at *18.

Like the Court of Criminal Appeals, we have concluded that the trial court did not abuse its

discretion in failing to allocate resources for a demographics and statistics expert.

Pursuant to Tenn. Code Ann. § 40-14-207(b) (1997),42 “[i]n capital cases where the

defendant has been found to be indigent . . . , [the] court . . . may, in its discretion, determine

that investigative or expert services or other similar services are necessary to ensure that the

constitutional rights of the defendant are properly protected.” The trial court’s rulings with

regard to these expert services will not be overturned unless the trial court’s decision

constitutes an abuse of discretion. State v. Smith, 993 S.W.2d 6, 28 (Tenn. 1999) (appendix);

State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994).

To warrant reversal for failure of a trial court to allocate resources for expert

assistance, a defendant must show the existence of a “particularized need” for the allocation

of resources for expert assistance. State v. Dellinger, 79 S.W.3d 458, 469 (Tenn. 2002);

State v. Barnett, 909 S.W.2d 423, 430 (Tenn.1995); State v. Shepherd, 902 S.W.2d 895, 904

(Tenn. 1995); State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992). In order to demonstrate

a particularized need, a defendant must first establish that he or she will not have a fair trial

without the requested expert assistance. State v. Dellinger, 79 S.W.3d at 469; State v. Scott,

33 S.W.3d 746, 753 (Tenn. 2000); State v. Barnett, 909 S.W.2d at 430-31. The defendant

must also establish that there is a reasonable likelihood that the requested expert assistance

will materially assist him or her in preparing or presenting his or her case. State v. Dellinger,

79 S.W.3d at 469; State v. Scott, 33 S.W.3d at 753; State v. Barnett, 909 S.W.2d at 430-31.

Defendants do not have an inherent statutory or constitutional right to a statistics or

demographics expert to address issues related to determining whether a jury venire represents

a fair cross-section of the community. Gobert, Jury Selection § 6:11. However,

circumstances may arise in which a particularized need for a statistician or demographics

42

A modified version of this provision remains codified at Tenn. Code Ann. § 40-14-207(b) (2006).

-46-

expert would require the appointment of such an expert. These circumstances have been

limited to cases where there is a substantial disparity between the representation of

constitutionally distinctive groups in the jury venire and the community.43

When Mr. Hester requested leave to retain a statistician, the evidence showed an

absolute disparity of Hispanics of .8% and an absolute disparity of African-Americans of

.7%. The comparative disparity for Hispanics was 44.4%, and the comparative disparity for

African-Americans was 15.56%. In light of the relatively small size of these minority

communities in McMinn County, these variances are simply insufficient to warrant a finding

that the trial court abused its discretion by declining to permit Mr. Hester to retain a

statistician. Our conclusion in this case is bolstered by the demonstrated familiarity and skill

of Mr. Hester’s lead counsel in presenting legal arguments based on statistical analysis.

Accordingly, we decline to find that the trial court erred by failing to find a particularized

need for the appointment of an expert statistician in this case.

X.

T HE C OMPETENCY AND C ONDUCT OF THE J URY C OMMISSIONERS

Mr. Hester’s final argument with regard to the selection of the jury venire focuses on

the competency and conduct of the McMinn County jury commissioners. He asserts that two

of these commissioners were not qualified to perform their statutory duties under the law as

it existed at all times relevant to this case.44 The Court of Criminal Appeals rejected this

claim on the ground that Mr. Hester failed to present evidence to establish it. State v. Hester,

2009 WL 275760, at *17. While we differ with the Court of Criminal Appeals’ reasoning,

we have concluded that Mr. Hester has failed to present any evidence that he was prejudiced

by the composition or the conduct of the McMinn County jury commissioners.

43

See, e.g., United States v. Rodriguez-Lara, 421 F.3d at 941-48 (finding the trial court erred by

failing to appoint an expert where the absolute disparity of Hispanics was 14.55%); United States v.

Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982) (finding no error in failing to appoint a statistics expert where

the absolute disparity of African-Americans was 2.8%, Hispanics was 7.7%, and Asians was 4.7% and

rejecting defendant’s argument that the percentages should be aggregated as a collective distinct non-white

group); United States v. Armstrong, 621 F.2d 951, 956 (9th Cir. 1980) (concluding that under-representation

of African-Americans by 2.83% did not constitute a sufficiently substantial absolute disparity to require the

appointment of a statistical expert for an indigent defendant); State v. Gladstone, 628 P.2d 849, 851 (Wash.

Ct. App. 1981) (finding no error by the trial court in failing to appoint an expert where the absolute disparity

of Hispanic jurors was 2.2%); see also State v. Brown, 296 S.E.2d 839, 842 (N.C. Ct. App. 1982).

44

The Tennessee General Assembly has now largely replaced jury commissioners with jury

coordinators. See Act of May 21, 2008, ch. 1159, § 1, 2008 Tenn. Pub. Acts 976, 980-85 (codified at Tenn.

Code Ann. §§ 22-2-201 through -305 (2009)).

-47-

A.

On June 4, 2003, almost two years before Mr. Hester’s trial, Mr. Heinsman caused

subpoenas to be issued to each of McMinn County’s three jury commissioners, directing

them to appear at a hearing on June 9, 2003. Mr. Heinsman talked with each of the three

commissioners on June 5, 2003, to explain the purpose of the subpoena and the hearing. On

June 9, 2009, he filed a motion to dismiss the indictment and the jury venire on the ground

that the Board of Jury Commissioners was “defective.” He alleged in the motion that one of

the jury commissioners, Mildred Adams, lacked the mental capacity to perform her duties

and that another commissioner, Henry T. Webb, was not qualified to serve as a jury

commissioner because he was also a member of the McMinn County Board of Equalization.45

Mr. Heinsman also filed an “affidavit”46 attempting to establish that Ms. Adams was

“unavailable” because “someone [had] spirited [Ms.] Adams away in advance of the

hearing.”

The State responded on June 9, 2003, by filing a motion to quash the subpoenas to the

McMinn County jury commissioners. Even though two of the three commissioners were in

court on June 9, 2003, the trial court declined to consider the State’s motion to quash the

subpoenas. Instead, the court postponed the argument on the motions to a later date to give

the parties more time to consider all the motions that had been filed on the day of the hearing,

including the State’s motion to quash.

On September 5, 2003, Mr. Hester again caused subpoenas to be issued to the

McMinn County jury commissioners, directing them to appear at a hearing set for September

9, 2003. On the day of the hearing, the State again moved to quash these subpoenas on

several different grounds. The trial court granted the State’s motion to quash. In his motion

for new trial, Mr. Hester again took issue with the competency and conduct of the McMinn

County jury commissioners and supported his motion with documentary evidence regarding

Mr. Webb’s membership on the McMinn County Board of Equalization.

Mr. Hester renewed his challenge to the competency of the McMinn County jury

commissioners in the Court of Criminal Appeals. The court rejected his arguments based on

the following reasoning:

45

At all relevant times, Tenn. Code Ann. § 22-2-201(b)(1) (Supp. 2003); Tenn. Code Ann. § 22-2-

201(b) (1994), jury commissioners could not be state or county officers.

46

The document that Mr. Heinsman filed was titled “affidavit,” although it does not contain a signed

notary’s certification that the statements contained in the affidavit were prepared and sworn to by Mr.

Heinsman.

-48-

Upon careful examination of the record, we conclude that

the defendant has failed to establish his claim that the selection

of the venire list was invalidated because two of the three

McMinn County jury commissioners were disqualified to act.

The record reflects that counsel filed a pre-trial motion to

dismiss the indictment based on an allegedly defective jury

commission. However, no hearing was held on the matter and

the record is thus devoid of proof to support the defendant’s

claim with the exception of the aforementioned affidavit

regarding Ms. Adams’ “bad memory” and the 1998 document

appearing to contain Mr. Webb’s signature. We conclude that

these documents do not establish that Ms. Adams was unfit to

serve as a jury commissioner or that Mr. Webb was disqualified

by his service on another county board when the venire list was

prepared in 2000. In the absence of evidence that a majority of

the jury commissioners were not qualified to act, “every

presumption must be made in favor of their competency.”

Turner v. State, 111 Tenn. 593, 608 (1902). The defendant is

not entitled to relief on this issue.

State v. Hester, 2009 WL 275760, at *17.

In its brief filed with this Court, the State dismisses Mr. Hester’s arguments regarding

the McMinn County jury commissioners by pointing out that the only evidence of Ms.

Adams’s lack of capacity to serve as a jury commissioner is Mr. Heinsman’s “affidavit.”

Even though it concedes that the “McMinn County Board of Equalization document from

1998 . . . appears to have been signed by Mr. Webb,” the State insists that “there is no other

proof in the record regarding his [Mr. Webb’s] alleged service on a county board of

equalization.” In addition, the State hastens to point out that even if one of the jury

commissioners was disqualified, the acts of the remaining two commissioners would be

valid.47

47

Tenn. Code Ann. § 22-2-202(e) (1994), repealed by Act of May 21, 2008, ch. 1159, § 1, 2008

Tenn. Pub. Acts at 977, 980-81, provided that

[i]n the event at any time a member of the board [of jury commissioners] cannot be in

attendance because of sickness or for any other reason when a meeting is necessary, the two

(2) remaining members shall constitute a quorum and discharge the duties of the board until

the other member is able to resume board attendance.

In addition, this Court had held that a jury commission could continue to act when the service of one

commissioner was contrary to statutory limitations, as long as the majority of the commissioners was

(continued...)

-49-

We cannot agree with the State that Mr. Hester’s arguments regarding the two

challenged jury commissioners can properly be dismissed because of the absence of proof.

We find this proposition disturbingly Kafkaesque in light of Mr. Hester’s efforts to obtain

the evidence in a timely manner and the State’s successful opposition to these efforts in the

trial court.

B.

The citizen jury provides the foundation of this Nation’s legal system. Encroachment

on the right to trial by jury was among the chief complaints registered by the American

colonists in the Declaration of Independence.48 Alexander Hamilton considered the right to

trial by jury to be “the very palladium of free government.”49 Thomas Jefferson believed it

to be “the only anchor, ever yet imagined by man, by which government can be held to the

principles of [the] Constitution.” 50

The right to trial by jury was held in equally “high estimation”51 by the framers of

Tennessee’s constitutions. This Court has characterized the right as “an essential element

of public liberty”52 and as “vital . . . to the security of life, liberty, and property of the

citizen.”53 Just thirty years after Tennessee became a state, this Court noted that

[t]he right to a trial by jury . . . is too sacred to be intermeddled

with by any power upon earth; too inseparable from human

happiness to be submitted to the discretion of any human

Legislature; it stands upon eternal foundations, and as time

grows old it grows in veneration and stability.

47

(...continued)

competent. Turner v. State, 111 Tenn. 593, 608, 69 S.W. 774, 778 (1902). Neither Tenn. Code Ann. § 22-2-

202(e) nor Turner v. State can be used to validate the acts of a board of jury commissioners in the absence

of two competent commissioners.

48

The Declaration of Independence para. 20 (U.S. 1776) (“For depriving us in many cases of the

benefits of Trial by Jury.”).

49

The Federalist No. 83, at 560 (Alexander Hamilton) (Easton Press 1979).

50

Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), in 15 The Papers of Thomas

Jefferson 269 (Julian P. Boyd ed., 1958).

51

See Bank of the State v. Cooper, 10 Tenn. (2 Yer.) 599, 621-22 (1831) (Kennedy, J.).

52

Riley v. Bussell, 48 Tenn. (1 Heisk.) 294, 296 (1870).

53

McLain v. State, 18 Tenn. (10 Yer.) 241, 241 (1837).

-50-

Tipton v. Harris, 7 Tenn. (1 Peck) 414, 419 (1824). Accordingly, Article I, Section 6 of the

Tennessee Constitution, like the similar provisions that preceded it, preserves for all persons

subject to Tennessee’s laws the right to trial by jury as it existed at common law 54 when the

federal government ceded to North Carolina the lands containing the territory that now

comprises Tennessee. State v. Dusina, 764 S.W.2d 766, 768 (Tenn. 1989); Willard v. State,

174 Tenn. 642, 645, 130 S.W. 100 (1939).

This Court has also recognized that juries, like trial judges, must be disinterested and

impartial. Gribble v. Wilson, 101 Tenn. 612, 615, 49 S.W. 736, 736 (1899); Neely v. State,

63 Tenn. 174, 183 (1874). Accordingly, the right to trial by jury necessarily includes the use

of “methods . . . to secure independent and disinterested jurors.” Paducah, T. & A. R.R. v.

Muzzell, 95 Tenn. 200, 201, 31 S.W. 999, 999 (1895). As Justice Peck observed, “[w]ho is

so dull as not to know that the persons to be called as jurors, the calling of them, the place

they were to come from, their selection and oath, make parts in the trial by jury. Dispense

with any one requisite, and where will we stop?” Kirby v. State, 15 Tenn. (7 Yer.) 259, 266

(1834) (Peck, J.).

The process for selecting jurors and impaneling juries takes on great significance in

criminal cases because of the role that juries play as a vital check against the abuse of power

by the government and its prosecutors. See Powers v. Ohio, 499 U.S. 400, 411 (1991);

Batson v. Kentucky, 476 U.S. 79, 86 (1986); State v. Bell, 745 S.W.2d 858, 867-68 (Tenn.

1988). In order to properly fulfill this role, juries must be chosen from venires that reflect

a fair cross-section of the community, and they must be “indifferently chosen” rather than

selected with an impermissible purpose or design. See Batson v. Kentucky, 476 U.S. at 86-87

(quoting 4 William Blackstone, Commentaries *349-50).

C.

Because of the central role that juries play in criminal proceedings, all those involved

in the process of selecting jury venires and empaneling juries – including the jury

commissioners and coordinators, court clerks, lawyers, and judges – must comply with the

applicable constitutional and statutory requirements. See State v. Coleman, 865 S.W.2d 455,

458 (Tenn. 1993). In addition, to accomplish the goal that “the administration of justice

should not only be chaste, but should not even be suspected,” 55 the process for generating

54

The “essentials” of the right to trial by jury are described in detail in Woods v. State, 130 Tenn.

100, 106, 169 S.W. 558, 559 (1914).

55

Neely v. State, 63 Tenn. at 183 (quoting 3 William Blackstone, Commentaries *383); see also State

v. Lynn, 924 S.W.2d 892, 898 (Tenn. 1996) (noting that “[t]o promote public confidence in the fairness of

the system and to preserve the system’s integrity in the eyes of the litigants and the public, ‘justice must

(continued...)

-51-

jury venires and juries should be open and transparent. The State may alleviate any concerns

about transparency by voluntarily making available to defendants information regarding the

process for generating lists of prospective jurors and for selecting jury venires in the county

where the case will be tried.

Where, as in this case, the process for selecting the jury venire is more opaque than

transparent, a defendant may seek judicial assistance, as Mr. Hester did, to obtain the

information. However, when a defendant requests assistance in discovering or obtaining jury

selection information, the courts must balance the defendant’s need for the requested

information with the significant administrative burdens that may arise from the request and

the complexities posed to the orderly functioning of Tennessee’s criminal courts that could

arise from repeated requests for the same information.

In balancing these interests and safeguarding the defendant’s statutory and

constitutional rights, we conclude that a defendant who makes a prima facie showing of a

statutory or constitutional violation with regard to the preparation of lists of prospective

jurors or the selection of jury venires or petit juries has the right to subpoena appropriate

witnesses and documents. See Buckingham v. State, 540 S.W.2d 660, 665 (Tenn. Crim. App.

1976) (stating that “[a]ny accused would have the right, upon proper motion, to have the

court inquire into any suspected irregularities [in selecting jury venires] . . . [and] had the

right to present any witnesses or other evidence that he desired in order to support his

position”); Ward, Tennessee Criminal Trial Practice § 20:3, at 542; see also State v.

Johnson, 131 P.2d 173, 193 (Or. 2006). To find otherwise would be to render the statutory

and constitutional protections regarding the process for selecting juries elusive and hollow.

Based on the record in this case, we have determined that Mr. Hester provided the trial

court with enough evidence to establish a colorable claim that two of the three McMinn

County jury commissioners were not qualified to serve when the Board of Jury

Commissioners removed names of prospective jurors from the master list generated by the

McMinn County Clerk’s Office to form the jury venire at issue in this case. Mr. Hester’s

lawyer alleged in writing that Mr. Webb was “presumptively disqualified” from serving as

a jury commissioner because he was also serving on the McMinn County Board of

Equalization. He also alleged in writing that Ms. Adams was “presumptively disqualified”

because she was “incapable of service due to her worsening mental status” and that, based

on counsel’s good faith belief, Ms. Adams’s condition was “commonly known in the

McMinn County Courthouse.” These written allegations provided a sufficient substantive

basis for denying the State’s motion to quash the subpoenas issued to McMinn County’s

three jury commissioners.

55

(...continued)

satisfy the appearance of justice.’” (quoting Offutt v. United States, 348 U.S. 11, 13 (1954)).

-52-

D.

Our conclusion that Mr. Hester made a colorable claim that two of McMinn County’s

jury commissioners were not qualified to serve does not necessarily require us to find that

the trial court erred by quashing the subpoenas to the jury commissioners or that the

unresolved questions regarding the competency of the jury commissioners requires a reversal

of Mr. Hester’s conviction and sentence. The trial court’s decision to quash the subpoenas

may be upheld if there are defects in the subpoenas attributable to Mr. Hester. Likewise, Mr.

Hester’s conviction and sentence need not be reversed based on the incompetency of two of

McMinn County’s jury commissioners in the absence of evidence that Mr. Hester was

actually prejudiced thereby.

The Issuance and Service of the Subpoenas

Mr. Hester filed many pretrial motions and set many of the motions for hearing on

June 9, 2003. In preparation for this hearing, Mr. Hester caused subpoenas to be issued to

many persons whose testimony was relevant to the substance of his motions. After the

hearing was continued and rescheduled for September 9, 2003, Mr. Hester’s lawyer again

issued subpoenas to over sixty persons.

The issuance and service of the subpoenas became an issue at the September 9, 2003

hearing. With specific regard to the subpoenas issued to the three jury commissioners, the

State filed a motion to quash, asserting, among other grounds, that “none of the subpoenas

. . . were lawfully issued or served.” At the hearing, the State presented an affidavit of the

deputy clerk stating that “[n]o such subpoenas ever issued from the Circuit Clerks, nor did

I receive any requests from Mr. Heinsman for such process.” The State also argued that all

of the disputed subpoenas had been “generated over the office copier of Mr. Heinsman’s

office and faxed through fax machines to these folks [the subpoenaed witnesses].”

In response to the State’s motion, Mr. Heinsman stated that in the six capital cases he

had tried, he had “asked the clerks of the courts if I could copy the subpoenas that they are

required to issue in blank to attorneys, because of the volume that need to be issued, and in

this case, because of the remoteness of my office from here.” He also asserted that the

deputy clerk had given him “permission to make final copies.” Finally, Mr. Heinsman stated

that “I have served subpoenas by fax, by mail, by phone, by just about every method

calculated to provide actual notice, and I’ve never in any case had a motion to quash; not

one.” The trial court granted the State’s motion to quash the subpoenas of the jury

-53-

commissioners without specifically addressing the State’s arguments regarding the issuance

and service of the subpoenas.56

Tenn. R. Crim. P. 17(d) provides that “[a] subpoena may order a person to produce

the books, papers, documents, or other objects the subpoena designates.” Subpoenas are

“issued by a clerk or other authorized court officer, who shall sign it but otherwise leave it

blank. The party requesting the subpoena shall fill in the blanks before the subpoena is

served.” Tenn. R. Crim. P. 17(a). Subpoenas “may be served by any person authorized to

serve process, or the witness may acknowledge service in writing on the subpoena.” Tenn.

R. Crim. P. 17(f)(1). The person serving the subpoena “shall deliver or offer to deliver a

copy of the subpoena to the person to whom it is directed or leave a copy with an adult

occupant of the person’s usual residence.” Tenn. R. Crim. P. 17(f)(1).

A subpoena may be quashed or modified “if compliance would be unreasonable or

oppressive.” Tenn. R. Crim. P. 17(d)(2). Reviewing courts review a trial court’s decision

regarding a motion to quash using the “abuse of discretion” standard. State v. Burrus, 693

S.W.2d 926, 929 (Tenn. Crim. App. 1985); see also State v. Huskey, No. E1999-00438-CCA-

R3-CD, 2002 WL 1400059, at *110 (Tenn. Crim. App. June 28, 2002), perm. app. denied

(Tenn. Feb. 18, 2003).

The record reflects that there may very well be technical errors in the issuance and

service of the subpoenas to the jury commissioners. However, the record is not substantially

developed on these points because the trial court did not base its decision to quash Mr.

Hester’s subpoenas on these technical grounds. Additionally, the State has not relied on

these potential defects as a basis for affirming the trial court’s decision to quash the subpoena

issued to the jury commissioners. In light of the state of the record and the State’s reliance

on other issues, we will turn our focus from considering whether the trial court abused its

discretion by quashing the subpoenas to whether Mr. Hester demonstrated that he was

prejudiced by the alleged disqualification of two of McMinn County’s three jury

commissioners.

The Evidence of Prejudice

As a general matter, a defendant cannot successfully challenge an indictment or jury

venire due to improper jury selection procedures without demonstrating either that he or she

was prejudiced or that the improper procedures were the result of purpose

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