State v. Hartman: In Memory of Kathy Nishiyama

Charles Edward Hartman died in prison at age 49 on May 24, 2007. Good riddance. Had he never existed, Kathy Nishiyama might have enjoyed a fulfilling existence. But on Nov. 16-17, 1981, he kidnapped the 16-year-old and raped, murdered, then raped her again.

Who was this fiend? Three Supreme Court opinions tell the tale at 703 S.W.2d 106 (1985), 896 S.W.2d 94 (1995), and 42 S.W.3d 44 (2001).

Hartman was a trusty jailed at Charlotte in Dickson County. A deputy had him working at a tobacco barn just north of town. Incredibly, at about 6 p.m. the deputy entrusted his patrol car to Hartman and instructed him to drive it back to jail. He did not arrive until almost 4 a.m.

Instead of driving the short distance south, Hartman drove north to Clarksville in Montgomery County. There he activated the cruiser's blue flashing lights and pulled over Miss Nishiyama in a church parking lot around 9:30 p.m. The atrocities commenced.

Three months passed without a trace of the victim. Then Kathy Nishiyama's purse was found Feb. 24, 1982, near Erin, the Houston County seat. A week or so later authorities located nearby a skull and other skeletal parts and clothes. Forensic anthropologist Dr. Bill Bass made a positive identification.

Charles Edward Hartman's Montgomery County trial began May 4, 1983. He was convicted and sentenced to death on May 23; the Supreme Court affirmed. A postconviction challenge resulted in a second sentencing hearing, and again the result was death. On direct appeal from that sentence, the court remanded for yet a third sentencing hearing. This time the jury opted for life in prison.

What procedural nicety enabled Hartman to escape capital punishment? Death penalty mitigating factors, now codified at Tenn. Code Ann.  §39-13-204(j), include "any other mitigating factor that is raised by evidence produced by either the prosecution or defense at either the guilt or sentencing hearing." A factor known as "residual doubt" carried the day. Even though the guilt phase produced proof beyond reasonable doubt that Hartman was Kathy Nishiyama's murderer, jurors should have been allowed to consider residual doubt at the sentencing phase. Guess what authority is cited at Annotation 28 for this mitigating factor? State v. Hartman, 42 S.W.3d 44 (Tenn. 2001).

May Kathy Nishiyama rest in peace.  


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.