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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 ...


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