State of Tennessee v. Craig Michael Barbee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 6, 2015
STATE OF TENNESSEE v. CRAIG MICHAEL BARBEE
Appeal from the Circuit Court for Crockett County
No. 4326 Clayburn L. Peeples, Judge
No. W2014-00835-CCA-R3-CD - Filed May 1, 2015
The defendant, Craig Michael Barbee, was convicted of attempted second degree murder,
especially aggravated robbery, two counts of aggravated robbery, employing a firearm
during the commission of a dangerous felony, and two counts of aggravated assault,
which were merged with the aggravated robbery convictions. He received an effective
sentence of 106 years. On appeal, the defendant argues that the trial court erred by not
granting his motion for change of venue and in sentencing. Following our review, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and ROGER A. PAGE, JJ., joined.
Tom W. Crider, District Public Defender; J. Daniel Rogers (on appeal) and Jamie
Berkley (at trial), Assistant Public Defenders, for the Defendant-Appellant, Craig
Michael Barbee.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Garry G. Brown, District Attorney General; and Hillary L. Parham, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTS
The defendant’s convictions resulted from his robbery of a Dollar General Store in
Friendship, Tennessee, during which he shot and seriously wounded the chief of police.
Since the defendant is not contesting the sufficiency of the evidence, we will review it in
a narrative fashion.
During the evening of May 18, 2012, the defendant entered the store and asked a
clerk, Shay Olonda Nicole Palmer, about head scarves. He left without making a
purchase. She recognized him when later, wearing a mask, he returned and began yelling
and cursing at her, wanting the key to the safe. She responded that only the manager had
the key. Pointing a pistol at Ms. Palmer, he grabbed her arm and pushed her to the back
of the store. On the way, they encountered Chief Bill Garrett, of the Friendship Police
Department, who was in civilian clothes and shopping in the store with his wife at the
time. Chief Garrett told his wife the store was being robbed and she should leave
immediately. Also, he broadcast a call on his radio that the store was being robbed. The
defendant repeatedly hit Chief Garrett in the back of the head as he forced the two
hostages toward the rear of the store. As they entered the back storage room, they
encountered Chief Garrett’s wife and Angela Lumley, the assistant manager, who were
hiding behind some boxes. Unsuccessful in obtaining the key to the safe, the defendant
took cell phones from Chief Garrett and his wife, stomping them after tossing them on
the floor. He next took the money which they were carrying and demanded Chief
Garrett’s wallet. As the defendant saw Chief Garrett’s badge in the wallet, Chief Garrett
grabbed for the defendant’s pistol and was shot in the stomach by the defendant. The
defendant then took the remaining hostages to the front of the store, removed money
from the cash register, and ran out the door. As he passed a black Suburban SUV, he
threw his jewelry, gloves, and mask into it and fled. The defendant was chased and
subdued by two officers, who recovered from him a .38 caliber revolver. The defendant
waived his Miranda rights and made a written statement admitting that he had robbed the
Dollar General Store and shot Chief Garrett. The defendant did not testify or otherwise
present proof at the trial.
ANALYSIS
We will review the issues presented on appeal by the defendant.
I. Change of Venue
The Tennessee Rules of Criminal Procedure provide that a trial court may grant a
change of venue “when a fair trial is unlikely because of undue excitement against the
defendant in the county where the offense was committed or for any other cause.” Tenn.
R. Crim. P. 21(a). Whether to grant a motion for change of venue is left to the sound
discretion of the trial court, and the court’s ruling will be reversed on appeal only upon a
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clear showing of an abuse of that discretion. State v. Davidson, 121 S.W.3d 600, 611-12
(Tenn. 2003). The mere fact that jurors have been exposed to pretrial publicity will not
warrant a change of venue. State v. Mann, 959 S.W.2d 503, 531-32 (Tenn. 1997). For
this court to reverse a conviction based on a venue issue, the “defendant must
demonstrate that the jurors who actually sat were biased or prejudiced against him.”
State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992).
The defendant’s motion for change of venue set out the following bases for the
request:
1. The Defendant believes that it is unlikely that he can receive a
fair trial in this county due to the undue excitement and media publicity
commencing at the date of the alleged crime and continuing thereafter. The
media outlets within this jurisdiction have carried multiple stories
purporting to relate facts surrounding the various counts alleged in the
Indictment. Said outlets have a general circulation which extends
throughout the county and into the homes of most prospective jurors. Said
publicity transcends the normal amount of newspaper comment concerning
the Defendant and the charges pending against him.
2. The local television station, WBBJ, has broadcast multiple stories
regarding this case since May of 2012 including but not limited to the
injuries sustained by Friendship Police Chief Bill Garrett, quotes regarding
the facts of the case, quotes from the Defendant’s statement to police, and
quotes from Friendship Police Chief Bill Garrett regarding the desired
punishment of Defendant.
3. Other media outlets, including WMCT out of Memphis,
Tennessee; WREG out of Memphis, Tennessee; State Gazette out of
Dyersburg, Tennessee; the Jackson Sun out of Jackson, Tennessee; and the
Commercial Appeal in Memphis, Tennessee; have likewise carried news
reports at various hours of the day and have sent stories concerning this
Defendant into practically every home in this county.
4. Publicity in this case transcends the normal amount of newspaper
comment concerning the Defendant and the charges pending against him
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due to the fact that an officer, Friendship Police Chief Bill Garrett, was
injured during the commission of the alleged crime. There has been
tremendous community support and outreach to Friendship Police Chief
Bill Garrett, which has also received media coverage.
5. Defendant submits that the area from which the venire is drawn is
much smaller and more concentrated than other areas. Crockett County is,
with regard to population, . . . one of the smallest counties in Tennessee.
(Crockett County is approximately the 19th smallest county in Tennessee
with regard to population.)
6. Due to the publicity in this case, Friendship Police Chief Bill
Garrett being a well-known person in the Crockett County community, and
the size of Crockett County, there is a strong likelihood that potential jurors
from another venire would have much less knowledge of and much less
exposure to the facts and publicity surrounding this case.
Attached as exhibits to the motion were approximately thirty pages of various
types of news reports and comments regarding the incident. Apparently, the defendant
did not seek a pretrial hearing on this motion; and the record does not include an order of
the court denying the motion. At the beginning of the trial, as prospective jurors had
been seated, the court questioned them as a group and, then, individually, regarding their
knowledge of the incident.2 To those who had some familiarity with the incident, the
court then questioned each further regarding whether the prospective juror had formed an
opinion as to the guilt or innocence of the defendant and, if so, whether the opinion could
be set aside. As we understand the transcript of the voir dire examination of the jurors, of
the twelve selected, three had heard nothing of the matter; another three had heard of it
but recalled nothing of it; and another juror had heard of the matter but could recall little
about it. All of those selected said they could be fair, and the trial proceeded. In his
motion for a new trial, the defendant listed as an issue the denial of his change of venue
request. However, there was no elaboration of this assignment, and it was not raised in
oral argument on the motion.
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The prospective jurors were not questioned, either by the trial court or the defendant, as to their
exposure to or knowledge of the specific articles which were the bases for the motion for change of
venue.
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Based upon the record, we cannot conclude that the trial court abused its discretion
in not granting the motion for change of venue. The record does not show that the
prospective jurors had knowledge of the particular news articles relied upon by the
defendant’s motion, and there is no basis for our concluding that they could not do as
they said, which was to set aside any knowledge of the matter and make their decision
based upon the evidence at trial. Accordingly, this assignment is without merit.
II. Sentencing
The defendant also argues on appeal that the court erred in imposing the maximum
sentences for each conviction and ordering that they be served consecutively. The State
disagrees, as do we.
The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
supreme court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).
Sentences were imposed on the defendant for his convictions in Counts 1-5 of the
indictment. His convictions and sentences were, as to Count 1, 20 years at 35% as a
multiple offender for the attempted second degree murder of Bill Garrett; as to Count 2,
40 years at 100% as a multiple violent offender for the especially aggravated robbery of
Bill Garrett; as to Count 3, 20 years at 100% as a multiple offender for the aggravated
robbery of Shay Palmer; as to Count 4, 20 years at 100% for the aggravated robbery of
Daphne Garrett; and as to Count 5, 6 years at 100% as a career multiple offender for the
employing a firearm during the commission of a dangerous felony. All of these
sentences were ordered to be served consecutively. The State is correct in pointing out
that each sentence is within the range available for the defendant. As to the sentencing,
the defendant argues that it was excessive because he was sentenced to serve, “for a
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single episode of armed robbery which included a non-fatal shooting[] more than twice
the sentence many defendants receive for a conviction of first-degree murder.”
According to the presentence report, the defendant has a very lengthy record of
arrests and convictions, his first as an adult being in 1992, at age 18, when he was
sentenced to two years for the felony unauthorized use of a motor vehicle. This
conviction was followed, over the next eighteen years, by what appear to be at least nine
felony convictions, including convictions for robbery with a deadly weapon in 1993, at
age 19, and robbery without a deadly weapon in 1999, at age 26. It appears that the
defendant has spent most of his adult life either in prison or awaiting disposition of
charges for new crimes committed following his most recent release from custody.
Possibly because the defendant had spent so much time imprisoned, he reported “no
employment history.”
In imposing consecutive sentences, the trial court explained why the defendant
was a professional criminal and a dangerous offender:
That brings up the question as to whether any or some or all of these
charges should be run consecutively. It’s my understanding and I’m
looking at the law as I speak, I have to find that the Defendant is a
professional criminal who has knowingly devoted his life to criminal acts
as a major source of livelihood. I do find that.
I find further that the Defendant is an offender whose record of
criminal activity is extensive.
I find that the Defendant is a dangerous offender who has little
hesitation about committing crime in which the risk to human life is high.
Therefore, I find that the need for public safety demands that he be
sentenced as an offender with consecutive sentences.
The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in Tennessee Code
Annotated section 40-35-115(b) apply, including that the defendant is a dangerous
offender whose behavior indicates little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-
35-115(b)(4). As to consecutive sentencing, our standard of review is abuse of discretion
with a presumption of reasonableness. State v. Pollard, 432 S.W.3d 851 (Tenn. 2013).
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This defendant’s record speaks for itself. His very lengthy record of prior
convictions, including those for crimes of violence, coupled with the dangerous episode
in this matter, compels us to agree with the trial court that the defendant is dangerous,
does not hesitate to engage in violent behavior, and lengthy incarceration is necessary to
protect the public.
CONCLUSION
Based on the foregoing authorities and reasoning, the judgments of the trial court
are affirmed.
_________________________________
ALAN E. GLENN, JUDGE
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