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03/22/96 STATE TENNESSEE v. LESTER A. PEAVYHOUSE

March 22, 1996

STATE OF TENNESSEE, APPELLEE,
v.
LESTER A. PEAVYHOUSE, APPELLANT.



MONTGOMERY COUNTY. Hon. Robert W. Wedemeyer, Judge. (First Degree Murder; Attempted First and Second Degree Murder; Aggravated Assault; Possessing Unlawful Weapon).

William M. Barker, Judge, Joe B. Jones, Judge, William Acree, Jr., Special Judge.

The opinion of the court was delivered by: Barker

The appellant, Lester A. Peavyhouse, was convicted of two counts of first degree murder, one count of attempted first degree murder, one count of attempted second degree murder, four counts of aggravated assault with a deadly weapon, and one count of possession of an unlawful weapon. The appellant received two life sentences for the first degree murder convictions (counts one and two), to be served consecutively. He was sentenced as a Range II, multiple offender on the remaining counts as follows:

Count Three: Attempted First Degree Murder, a class A felony, thirty-five years to be served concurrently with count four and consecutively to the remaining sentences;

Count Four: Attempted Second Degree Murder, a class B felony, fourteen years to be served concurrently with count three and consecutively to the remaining sentences;

Count Five: Aggravated Assault, a class C felony, nine years to be served concurrently with count six and consecutively to the remaining sentences;

Count Six: Aggravated Assault, a class C felony, nine years to be served concurrently with count five and consecutively to the remaining sentences;

Count Seven: Aggravated Assault, a class C felony, nine years to be served concurrently with count eight and consecutively to the remaining sentences;

Count Eight: Aggravated Assault, a class C felony, nine years to be served concurrently with count seven and consecutively to the remaining sentences; and

Count Nine: Possession of an Unlawful Weapon, a class E felony, three years to be served consecutively to the remaining sentences.

Thus, the aggregate sentence is two consecutive life terms plus fifty-six years in the Department of Correction.

On appeal, the appellant raises the following issues for our review:

(a) whether the evidence was sufficient to establish the appellant's sanity at the time of the offenses;

(b) whether the trial court erred in refusing to allow the appellant to request expert services in an ex parte proceeding;

(c) whether the trial court erred in denying the appellant's motion for appointment of a psychiatrist;

(d) whether the trial court erred in excluding a police report detailing a prior incident between one of the victims and the appellant;

(e) whether the trial court erred in allowing the State to call Chris Johnson as a rebuttal witness;

(f) whether the trial court erred in allowing the State to call Dr. Carl Selavka as a rebuttal witness;

(g) whether the trial court erred in overruling the appellant's motion for a mistrial based on the prosecution's conduct with regard to Dr. Selavka;

(h) whether the trial court erred in allowing Dr. Selavka to testify as an expert witness in the field of hair growth analysis; and

(i) whether the trial court imposed improper sentences.

We conclude that there is no reversible error in the record, and we affirm the judgment of the trial court.

On October 31, 1991, a Halloween party was held at the residence of Robert Huff in Clarksville, Tennessee. Those in attendance included the victims of the first degree murders, Misty Harding and Billy Hembree, the victims of the attempted first and second degree murders, David Ross and Huff, and the victims of the aggravated assaults, Charity Baggett, Deanna Shepherd, Walter Scott Palmer, and Jeffrey Underwood. Several in attendance were dressed in Halloween costumes; Huff and Billy Hembree were dressed in women's clothing, complete with make up and high heeled shoes.

Around midnight, the appellant, who lived in an adjacent apartment, called the police to complain about the loud music and noise from the party. Officer Robert Osterholtz responded to the call, talked to several people, and told them not to play the music too loud. Osterholtz described the appellant as "upset and a little angry." The appellant told Osterholtz that he had been harassed by occupants of Huff's apartment on prior occasions. The appellant described the harassment as being of a homosexual nature.

Several witnesses testified that Robert Huff was upset that the appellant had called the police. According to Brian Jurisin, Huff stood up and said he was "going to go kick [the appellant's] ass." Huff had been drinking beer and appeared to be intoxicated. Jurisin and Chris Johnson tried to stop Huff from leaving the apartment, but he opened the front door and took one or two steps outside. Jurisin saw the door to the appellant's apartment open; he then heard a gunshot, and Huff said he had been shot. Jurisin pulled Huff back into the apartment and shut the door. Most everyone ran for the back door. Jurisin believed he heard six or seven shots as he fled from the house, and he was aware of "some short period of time," perhaps fifteen or twenty seconds, between each shot.

David Ross testified that he heard a gunshot and saw Robert Huff being "blown back into" the apartment. Huff yelled that he had been shot, and everyone ran toward the back of the apartment. Ross ran into the bathroom along with Misty Harding and Huff. Seconds later, the bathroom door was kicked open. The appellant fired one shot into Ross's stomach with a sawed-off shotgun. Ross fell backward and grabbed his stomach; he was bleeding badly. He then saw the appellant reload the shotgun and shoot Harding, who fell back into the bathtub. Ross believed that five or ten seconds separated the shot that hit him from the shot that hit Harding.

The appellant then left the bathroom "jumping and screaming," and acting "like a wild person." Ross managed to walk out the back door of the house, and he saw several people getting into Deanna Shepherd's car. The appellant fired two shots at the car, which then sped away from the scene in reverse. Ross was taken to the Emergency Room at Clarksville Memorial Hospital and then flown to Vanderbilt Hospital where he had two operations and remained for sixteen days. While hospitalized, Ross told police that Huff had said, "This guy [appellant] is crazy....He's killed his sister before or tried to kill her."

Deanna Shepherd testified that she ran out of the house after hearing the first gunshot and seeing Robert Huff fall back into the room. She ran to her car with Scott Palmer, Charity Baggett, and Jeff Underwood. David Ross ran toward the car holding his stomach. Shepherd then saw the appellant come around the side of the house with "a long gun." Palmer was driving Shepherd's car; he backed away from the scene as the appellant fired shots at them. The first shot missed. A second shot hit the driver's side window. Shepherd believed that she heard four shots in all.

Robert Huff testified that he had consumed about a case of beer and was "really, really drunk." He remembered that the police complained about the music, but he did not recall seeing the appellant. After the police left, Huff opened his front door. He saw the appellant holding a shotgun and "grinning from ear to ear." The appellant shot him in the chest. *fn1 Huff ran to the bathroom to wash the blood from his wound; he then heard a "loud crash" in the bathroom and Misty Harding fell into the tub on top of him. He did not see who shot Harding, nor did he recall seeing David Ross in the bathroom.

Huff acknowledged that he is bisexual. He did not recall making homosexual threats toward the appellant or leaving notes under the appellant's door suggesting homosexual acts. He also did not recall a prior instance in which the appellant reported homosexual threats to the police. Huff testified that a friend, Kevin Howell, had shown him a letter the appellant had written to the editor of the Austin Peay University newspaper. The letter was in response to a "gay awareness" article, and it was published on October 23, 1991. *fn2 It contained derogatory remarks about homosexuals, referred to threats made by homosexual men against heterosexual men, and included a veiled reference to Huff's homosexual threats against the appellant. *fn3 The letter concluded that "homosexuals should not be surprised if they get bashed." Huff said he read part of the letter, threw it down, and did not think about it any longer. *fn4

Kevin Howell was also at the Halloween party. He testified that Robert Huff got angry after the appellant called the police. As Huff walked out the door, Howell saw a flash and heard a gunshot. Everyone tried to run from the apartment; Howell left the building and ran down the street. As he did, he heard Billy Hembree "screaming at the top of his lungs." He then heard another gunshot. Howell believed that he heard four shots fired no more than one minute apart.

Howell ran to the Minit Market convenience store a few blocks from the scene and called 911. He went into the restroom to try to calm down. When he came out he saw the appellant talking on the telephone. The appellant was covered with blood but sounded "very calm and serene." Howell asked the store clerk for change, left the store, and used a pay phone to call 911 a second time. As he did, a Tennessee highway patrolman and a Clarksville police officer pulled into the parking lot. Howell told the officers that the appellant was inside the store.

Ernestine Keith was working at the Minit Market. The appellant was a regular customer. She saw him enter the store around midnight. The appellant asked to use the store phone and said that it was an emergency. Keith did not notice anything unusual about the appellant; she said that he was "very calm" and spoke in a normal tone of voice. The appellant then ended his phone conversation by saying "never mind, they are on their way."

The appellant had called 911 from the store. The State introduced the tape recording of the call:

"This is 911, can I help you?"

"911, this is Lester Peavyhouse and I am at the Minit Mart at Crossland and Greenwood, and there has been a disturbance at my house where I was living, could a police officer come and talk to me at the Minit Market?"

"Okay, just a minute sir, don't hang up."

"All right."

"Sir?"

"Yeah?"

"Bear along with me, okay?"

"Yeah."

"What kind of disturbance was it?"

"Well, I heard shots, there was-- there was loud shots, and screaming and yelling and all kinds of commotion."

"You heard shots?"

"Yeah."

"Okay. Okay. Stay on the line until the officer gets there, okay?"

"Okay. I called earlier. I called the-- 911 earlier and I talked to a police officer at my house."

"Did you hear one shot, sir?"

"No, it sounded like there were several."

"The police officer is here, I think."

Clarksville Police Officer Joseph Papastathis and a Tennessee highway patrolman took the appellant into custody. The appellant had blood on his hands, but said he did not know where it had come from. The appellant denied having a weapon, and he said that he had walked to the store to call police. The appellant spoke in a "normal conversation tone," and he was very passive.

Officer Eric Gonzales arrived at the scene of the shooting at 12:13 a.m. David Ross and Robert Huff had been shot. Billy Hembree was found dead in the driveway. Misty Harding was found dead in the bathtub. Officers from the Crime Scene Unit later collected blood samples, shot fragments, lead pellets, and plastic wadding. The ammunition was for a .410 shotgun. A search warrant was later obtained for the appellant's apartment. A sawed-off .410 shotgun was recovered from a dresser drawer; an empty box of .410 ammunition was found in the kitchen.

Thomas Heflin, a firearms expert with the Tennessee Bureau of Investigation (TBI), testified that the barrel of the shotgun had been sawed off to 11 and 1/16 inches; the normal barrel length for the weapon was 26 inches and the minimum legal standard was 18 inches. Heflin testified that the ammunition found in Huff's apartment was consistent with the box of shells found in the appellant's apartment. He also said that the ejecting mechanism on the shotgun was worn; as a result, spent shells did not eject from the gun when it was opened, but rather, had to be extracted by hand, making it more difficult to fire rapidly.

Dr. Mona Gretal Case Harlan, Medical Examiner for Davidson County, conducted autopsies on Misty Harding and Billy Hembree on November 1, 1991. Misty Harding, age 17, had been shot in the left chest and abdominal area. There was extensive damage to her heart, right lung, liver, and esophagus. The wound pattern indicated that she had been shot from a distance of approximately five feet. Billy Hembree, age 23, had likewise been shot in the chest, which caused extensive damage to his heart. The wound indicated that the shot had been fired from a distance of five to six feet. The State concluded its case in chief.

Lana Parker, the appellant's sister, testified on behalf of the defense. The appellant, who was forty-one at the time of the trial, had been hospitalized numerous times for mental illness. In 1985, while Parker and the appellant were visiting their mother, the appellant was nervous and seemed "ill at ease." He told Parker he wanted her to drive him home, but Parker refused because it was too late in the evening. The appellant left the room, returned with an ax, and struck Parker in the head. Parker sustained a skull fracture and was hospitalized. The appellant had a "dead, dull look" on his face prior to striking her with the ax. After the incident, he was committed to the Middle Tennessee Mental Health Institute (MTMHI) for several years.

Amelia Bozeman testified that she was the opinion editor for the Austin Peay University newspaper in October of 1991. She knew the appellant was a student at Austin Peay and considered him to be a friend. They often had interesting conversations; in her opinion, the appellant was intelligent and fun to talk with. In late summer of 1991, the appellant told Bozeman he was concerned that his neighbor, a male, was trying to rape him. Bozeman said that the appellant appeared to be afraid. In October of 1991, the appellant wrote the letter to the editor regarding his views of homosexual men.

William Cannady owned the apartments that Huff and the appellant lived in. In the summer of 1991, the appellant complained to him about Robert Huff putting notes under his door that made reference to homosexual acts. The appellant was "not happy" about the situation. Debra Weeks, who lived in an apartment above Huff's, was also aware of the "aggravation" between the appellant and Huff. On the night of the offenses, she believed she heard close to ten gunshots.

Rebecca Smith, a licensed clinical social worker with the Forensic Services Division of MTMHI, testified that the appellant had been committed numerous times from 1972 to 1991. In December of 1972, the appellant was evaluated relative to criminal charges for desecration of a flag. The appellant acknowledged using LSD, mescaline, peyote, and marijuana. He was diagnosed with acute schizophrenia. In 1978, the appellant was evaluated following a charge of assault with intent to commit murder. He was not considered psychotic, but was diagnosed with a paranoid personality disorder. He was showing signs of delusions, and he expressed fear of homosexuals. He was found competent to stand trial, and a defense of insanity to the criminal charge was not supported by MTMHI officials.

In 1985, the appellant was evaluated and eventually committed in connection with his attack on his sister. He had auditory hallucinations involving rapes and homosexuals. He was delusional, and he feared that members of minority groups, particularly homosexuals, were "out to get him." The appellant was diagnosed with paranoid schizophrenia and treated with several anti-psychotic medications. A defense of insanity for the attack upon his sister was supported by MTMHI.

In November of 1991, the appellant was evaluated for the offenses in question. The appellant's diagnosis remained paranoid schizophrenic; he expressed fear of homosexuals and homosexual assaults, and he considered himself to be weak and deformed. The appellant was found competent to stand trial but committable. The trial court signed an order to this effect. Although not expressing an opinion on the appellant's mental state at the time of the offenses, Smith considered it significant that Robert Huff was dressed as a woman and possibly acting in a hostile manner. She could not recall whether she was aware of this information when the evaluation team met in December of 1991.

William H. Tragle, a psychiatrist at MTMHI, became involved with the appellant's case in January of 1992. The appellant was being treated for chronic paranoid schizophrenia; the records showed that he had been receiving 50 milligrams of haloperidol every four weeks at the time of the offense. Dr. Tragle labeled this a "low to moderate" dosage, and eventually doubled the dosage to 100 milligrams in March of 1992 because he was dissatisfied with the appellant's progress. Tragle testified that haloperidol is commonly used to treat paranoid schizophrenics because it controls delusional thinking and hallucinations. Tragle noted that the appellant had false beliefs which centered on homosexuality and that he was easily threatened. Dr. Tragle did not express an opinion on the issue of insanity.

Jonathan Lipman, a Ph.D. in neuropharmacology, also testified for the defense. Lipman was Chief of Pharmacology for Molecular Geriatrics in Illinois, a company that conducts drug discovery and research, and a former professor in the Department of Medicine at Vanderbilt University in Nashville. Lipman discussed the effects of haloperidol on paranoid schizophrenics, and he said that the treatment helps to control delusional fears and hallucinations. The side effects of haloperidol include drowsiness and depression.

Lipman testified that large doses of caffeine and ephedrine produce agitation and nervousness and exacerbate the paranoid psychosis of a paranoid schizophrenic. Caffeine may also cause excretion of haloperidol. Lipman testified that the amount of drugs or chemicals in a person's system may be determined by analyzing that person's hair. Moreover, by determining the growth rate of a person's hair, the amount of drugs can be measured for a given time period.

Lipman became involved in this case in January of 1992. By interviewing the appellant and others, he learned that the appellant was receiving injections of haloperidol and also ingesting large amounts of caffeine and ephedrine (a stimulant). Lipman conducted a forty-two day study of the appellant's hair growth rate, and sent a sample of the hair to National Medical Services in Willow Grove, Pennsylvania. The lab measured the amount of haloperidol and other drugs in the appellant's hair for those segments corresponding to October of 1991, and furnished a report of its findings. Lipman concluded that on October 31, 1991, the appellant had not received a haloperidol treatment for twenty-five days. As the appellant was on twenty-eight day cycles, he was near the end of a cycle. The amount of haloperidol in the appellant's system was "massively low at the time of the offense." *fn5 The tests also revealed that the dosage of haloperidol was doubled in March of 1992.

Christopher Johnson testified in the State's rebuttal case. He was at the party when the police investigated the complaint of loud music. The appellant made a remark about sexual preferences. Johnson said that they needed to "straighten out the problem" while the police officer was still there. When the police left, the appellant said that he would be "back in a minute." Johnson said to someone, "You'd better watch; that guy is liable to have a gun." Robert Huff became angry and said he had "had enough" and was going "to take care of" the situation. When Huff opened the door, there was a shotgun blast. This occurred about three minutes after the appellant said he would be "back in a minute."

Dr. Samuel Craddock, a clinical psychologist at MTMHI, testified that he evaluated the appellant in November of 1991. The appellant's IQ was above average. Personality testing revealed a paranoid schizophrenic personality. Screening tests for organic impairments were negative. In December, the evaluation team postponed making a determination on the appellant's sanity until Rebecca Smith could contact Debra Weeks and Ernestine Keith. Craddock believed that they did not have all the information to make a decision "with a high level of competence or assurance." The evaluation team met again in April of 1992, which was after Smith contacted the remaining witnesses. *fn6

Craddock testified that the appellant had a mental illness of paranoid schizophrenia at the time of the offense and was being treated with haloperidol. There were several signs that the haloperidol was working well. The appellant had made no complaints to Harriet Cohn Mental Health Center where he received his medication. In September or October of 1991, he had requested a lower dosage of haloperidol. The records from Harriet Cohn did not reflect any inappropriate conduct or emotions expressed by the appellant. The appellant lived alone, attended college, and had not been a disturbance to the community.

Craddock opined that the appellant was not legally insane at the time of the crimes: he had the substantial capacity to appreciate the wrongfulness of his actions and to conform his conduct to the requirements of the law. Craddock's Conclusion with regard to the appellant's capacity to appreciate the wrongfulness of his actions was based on the appellant's comments about the offense, which indicated that he was not suffering from hallucinations, delusions, or gross misperceptions of reality. The appellant did not indicate that he was acting in self defense or under a "command delusion" to commit the crimes. To the contrary, the appellant indicated that he wanted to frighten the individuals at the party. With regard to the appellant's ability to conform his conduct, Craddock noted the elements of planning: the appellant said that he "would be back," secured a gun, pursued the victims, and acted as the aggressor. In sum, the appellant "was able to carry out a sequence of actions toward a purpose or goal." His actions "were not random actions that had no rational purpose."

Craddock said that the appellant's 1985 adjudication of insanity had no bearing on his determination; a person's mental state varies over time and with regard to particular incidents. In the appellant's case, delusions were a slow process occurring on and off for a period of years. Craddock conceded that he "could see a basis" for the defense of insanity in December of 1991; after obtaining additional witness statements and information, Craddock concluded otherwise in April of 1992. He also conceded that it was significant that Robert Huff opened the door and had "a fighting demeanor" because it lent credibility to the appellant's version of the offenses. Similarly, given the nature of the appellant's paranoia, the fact that Huff was dressed as a woman would have caused "anguish" to the appellant. Neither of these factors, however, changed Craddock's opinion that the appellant was sane at the time he committed the offenses. Craddock saw a "common theme" in the appellant's history: whenever he "is challenged or confronted and demeaned in some way...he secures a weapon and assaults an individual."

Dr. A.K.M. Fakhruddin, a psychiatrist at MTMHI, also opined that the appellant was legally sane at the time of the offense. He agreed that the appellant was a chronic paranoid schizophrenic, yet said that haloperidol injections kept the appellant's delusions "under fairly good control." The appellant's last injection before the offenses was on October 9, 1991. Records from the Harriet Cohn Mental Health Center indicated that the appellant was feeling well and attending college. The appellant also had asked for a lower dose of medication.

Fakhruddin concluded that the appellant's mental illness did not prevent him from knowing the wrongfulness of his actions on October 31, 1991, nor did it render him incapable of controlling his conduct. The appellant's words and actions showed that he was aware the shootings and killings were wrong; he called the police immediately after the crimes. Many of the witnesses also commented on the appellant's "calm and rational" demeanor right after the offenses. In December of 1991, the decision about the appellant's mental state was deferred. After getting more information from other witnesses, Fakhruddin determined that the insanity defense could not be supported.

Karl Selavka, a Ph.D. in forensic analytic chemistry and Director of Forensic Operations for National Medical Services, also testified for the State. He described the methods for testing hair samples and discussed the factors that may affect the rate of one's hair growth such as age, gender, weather, and diet. Selavka's lab tested the hair samples sent by Dr. Lipman. The samples, and the appellant's hair growth rate, were based on averages that necessarily had some variability. Selavka said that at a ninety-five per cent statistical level of confidence, there was a twenty-two per cent variance. This, in turn, was a variance of weeks or months as the sample related to specific periods of time. Selavka noted that the results were negative for ephedrine; the testing included standards to prevent false negative readings.

I

The appellant claims that the State failed to prove that he was sane at the time of the offenses. When there is a challenge to the sufficiency of the evidence, the standard for review by an appellate court is whether, after considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Smith, 868 S.W.2d 561, 568-69 (Tenn. 1993), cert. denied, 115 S.Ct. 417, 130 L. Ed. 2d 333 (1994); Tenn. R. App. P. 13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and to all reasonable inferences that may be drawn therefrom. State v. Smith, 868 S.W.2d at 568-69.

The central issue in this case was the appellant's mental state at the time he committed these crimes. Under the law controlling this case, insanity was an absolute defense to a crime "if at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform that conduct to the requirements of the law." ...


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