State of Tennessee v. Bobby D. Parker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 17, 2013

STATE OF TENNESSEE v. BOBBY D. PARKER

Direct Appeal from the Circuit Court for Rutherford County

No. F-66425 David Bragg, Judge

No. M2012-01325-CCA-R3-CD - Filed September 26, 2013

Following a jury trial in the Circuit Court of Rutherford County, Defendant, Bobby D.

Parker, was convicted of three counts of attempted aggravated robbery and one count of

attempted aggravated burglary. Defendant was sentenced as a career offender for each

conviction, with sentences of 15 years imposed for each attempted aggravated robbery and

12 years for the attempted aggravated burglary. The trial court ordered two of the 15-year

sentences to be served concurrently with each other but ordered them to be served

consecutively to the third attempted aggravated robbery sentence. The attempted aggravated

burglary sentence was ordered to be served consecutively to the other sentences, for an

effective sentence of 42 years. In this appeal, Defendant raises two issues: (1) the trial court

committed reversible error by overruling his objection to a peremptory challenge exercised

by the State, and (2) the trial court imposed an excessive sentence by applying improper

enhancement factors. We affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, Jr. and R OBERT W. W EDEMEYER, JJ., joined.

Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant Public

Defender, Murfreesboro, Tennessee, for the appellant, Bobby D. Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; William C. Whitesell, Jr., District Attorney General; Shawn Puckett, Assistant

District Attorney General; and Allyson S. Abbott, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

Under the particular circumstances of this appeal, a detailed recitation of the facts

presented at trial is not necessary. However, the criminal acts of defendant in this spree led

from Rutherford County to Williamson County, where Defendant was also charged with

additional crimes related to the Rutherford County charges. Defendant pled guilty to eight

various crimes in Williamson County, leaving to the trial court to determine the length and

manner of service of sentences imposed. Defendant appealed the Williamson County

judgments to this Court. The facts as set forth in this Court’s opinion which affirmed the

judgments of the Williamson County trial court are sufficient to provide all the necessary

background for the case sub judice. This Court stated,

At the sentencing hearing on March 5, 2012, the State submitted judgments

of convictions which reflected that on January 27, 2012, the appellant was

convicted in Rutherford County of three counts of aggravated robbery and

one count of attempted aggravated burglary and received an effective

sentence of forty-two years. Also in Rutherford County, on June 20, 2012,

the appellant was found guilty of violating the probationary sentences he

was serving for convictions of possession of a Schedule II drug and

aggravated robbery, and he was ordered to serve his original

sixteen-year-sentence in confinement. The Rutherford County Circuit Court

ordered the appellant to serve the forty-two-year sentence consecutively to

the sixteen-year sentence for a total effective sentence of fifty-eight years.

In the instant case, the State recommended that the sentences imposed be

served concurrently with the forty-two-year sentence but consecutively to

the sixteen-year sentence.

Rutherford County Sheriff’s Detective Jim Tramel testified at the

sentencing hearing that in October 2010, he responded to the scene of a

home invasion in Smyrna. The three victims, Joanna, Tommy, and John

McClendon, told Detective Tramel that when they came home, the

perpetrator came down the stairs and pointed a gun at them. The perpetrator

took money, electronics, a camera, and custom-made golf clubs, one of

which had a “beaver head cover.” The perpetrator left the residence in the

victims’ 2005 white Volvo. Police chased the perpetrator but were unable

to apprehend him.

The next morning, Detective Tramel was informed that the victims’ car had

been located behind the Tractor Supply Company in Triune. Police

processed the vehicle, but no golf clubs were found. Thereafter, Detective

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Tramel contacted the Williamson County Sheriff’s Department and learned

that a 2010 white Ford Explorer was stolen approximately one mile from

the Tractor Supply Company. Detective Tramel believed the two crimes

were linked.

In order to locate the golf clubs, Detective Tramel contacted pawn stores

and local Play It Again Sports stores and asked to be informed if anyone

brought in golf clubs matching the description of the stolen items.

Approximately three days later, the manager of the Play It Again Sports

store at Cool Springs Galleria called Detective Tramel and said that the

appellant was trying to sell the stolen golf clubs. Detective Tramel

contacted the Franklin Police Department to request assistance in

apprehending the appellant.

Detective Tramel said that after the appellant was caught trying to sell the

golf clubs, he compiled a photograph line-up and showed it to one of the

victims, who positively identified the appellant as the perpetrator. Detective

Tramel noted that he recorded an interview with the appellant, he played the

interview for the victims, and the victims identified the appellant’s

distinctive voice from the interview.

Detective Tramel stated he felt that the appellant was “a menace, and I do

feel that with the violent acts that he’s partaken in, it’s just a matter of time

before somebody winds up getting shot and killed and he eliminates any

witnesses that could potentially testify against him.” Detective Tramel

noted that one of the victims shot at the appellant as he fled the scene.

Detective Tramel said that a couple of days prior to the Rutherford County

robbery and automobile theft, Warren Tiller and Allen Stanford each

reported that a firearm had been stolen from them. Both men resided near

the location of the home invasion. The firearms were ultimately found in

the 2010 Ford Explorer. Detective Tramel stated that the appellant had

resided in that area and that he was “preying on his neighbors.”

Franklin Police Officer Todd Stamper testified that at the time of the

offenses, he was the Alpha Shift Patrol Sergeant. In October 2010, he

received a call advising that someone at the Play It Again Sports store in

Cool Springs, who was later identified as the appellant, was trying to sell

unique golf clubs that were possibly related to a home invasion. Officers

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tried to apprehend the appellant, and he fled through the back of the store.

The officers gave chase but eventually lost sight of the appellant.

Officer Stamper and other officers searched for the appellant for

approximately an hour and a half. During the search, Officer Stamper went

into a Subway restaurant. The appellant had locked himself in the women’s

restroom. When officers opened the door, the appellant crawled into the

ceiling to try to escape, but the ceiling collapsed. When Officer Stamper

and another officer apprehended the appellant, he initially resisted and then

became still and unresponsive.

State v. Bobby Duane Parker, No. M2012-00748-CCA-R3-CD, 2013 WL 451891 at *1-2

(filed Feb. 6, 2013).

Analysis

Objection to State’s Peremptory Challenge to Juror

During jury selection, the following transpired:

LAW CLERK: Batson challenge on the prosecution.

THE COURT: Thank you. Counsel, if you’ll approach.

[Court Reporter], if you’ll come over here to

the side.

(A side bar conference occurred out of the

hearing of the jury, as follows:)

THE COURT: All right. [Defense Counsel]?

[DEFENSE COUNSEL]: Your Honor, Ms. Mays, who the State has

challenged in this round, is an African-

American juror, and I think under [Batson],

they have to give a reason other than that. [sic]

From there, they have to explain why they want

to strike her as a juror.

THE COURT: That’s only if you’re saying that the only

reason they’re striking her is because of

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discriminatory purposes. Is that your

allegation?

[DEFENSE COUNSEL]: Your Honor, that - - I did not see anything, and

I hate to accuse the State of anything. But I did

not see anything in my preliminary questioning

of this jury that would cause a problem. If

there is something else, I think they’re required

to [say].

THE COURT: All right. Thank you.

[PROSECUTOR]: Number one, the defendant’s not black. So I

don’t know why that would be prejudicial to

him. Number two, we didn’t like she - - she

answered my direct versus circumstantial

evidence, that it seemed like she was really

confused on the law. That’s our reason for

doing it, not because she’s black.

THE COURT: All right. The Court at this time would rule

that the State has given [a] nondiscriminatory

purpose for excusing this juror, and as a result,

I would deny the challenge at this time.

The prosecutor was referring to a portion of her voir dire questioning, where the

following occurred:

[PROSECUTOR]: Does anyone here, do they know the difference

between direct evidence and circumstantial

evidence? Ma’am, I see you nodding your

head back there. Can you tell us what the

difference is?

MS. MAYS: One is positive and circumstance - - one is not

positive, not sure of. But the first one being

positive, that this is a fact.

[PROSECUTOR]: Okay. You’re close.

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The prosecutor continued by providing a hypothetical fact situation which showed the

difference between direct evidence and circumstantial evidence. At the conclusion of giving

this information, the prosecutor asked all members of the prospective panel collectively,

“Does everyone understand that?” The court reporter’s notation in the transcript is that all

the prospective “jurors indicate by nodding heads.”

Defendant argues that the State exercised a peremptory challenge of the juror in

violation of Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the United States Supreme

Court held “the Equal Protection Clause [of the United States Constitution] forbids the

prosecutor to challenge jurors solely on account of their race.” Id. at 89. Subsequently, the

Supreme Court held that the State may make a Batson objection of discriminatory peremptory

challenges by a defendant. Georgia v. McCollum, 505 U.S. 42 (1992). Directly contrary to

the prosecutor’s initial response to the Batson challenge in this case, the prospective juror

and the defendant need not be of the same race in order for there to be a valid equal

protection claim. Powers v. Ohio, 499 U.S. 400, 415-16 (1991).

In the case sub judice, Defendant is Caucasian and the prospective juror is African-

American, as was the situation in State v. Hugueley, 185 S.W.3d 356 (Tenn. 2006). In

Hugueley, our supreme court addressed five Batson challenges by the Caucasian defendant

as to peremptory challenges of African-American prospective jurors by the State. The court

in Hugueley noted that under Batson, there is a three-pronged analysis when a Batson

challenge is made. The objecting party must first establish a prima facie case of purposeful

discrimination. If that is done, the other party has the burden to provide a neutral explanation

for the peremptory challenge. The race neutral explanation does not have to be persuasive

or plausible. If a race neutral reason is given, then the trial court must determine from all the

circumstances whether the objecting party has established purposeful discrimination.

Hugueley, at 368. If the trial court does not explicitly state that the objecting party has

satisfied the first prong of establishing a prima facie case of purposeful discrimination, yet

goes on to indicate to the other party (the State in the case sub judice) to submit its reason for

exercising its peremptory challenge, an appellate court may assume that the objecting party

made out a prima facie case of impermissible discrimination. Hagueley, at 371. As noted

above, the trial court in Defendant’s case did not state that Defendant made out a prima facia

case of discrimination by the State, but immediately asked the State to respond to the Batson

objection. The prosecutor gave her explanation without requesting the trial court to make

a finding on the record as to whether Defendant met his burden on the first Batson prong.

Accordingly, we must assume that the trial court determined that Defendant made out a prima

facie case of impermissible discrimination, and the State accepted this conclusion without

objection.

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As to the remaining Batson determinations, the trial court explicitly found that the

State’s reason for exercising the challenged peremptory challenge was race neutral.

However, despite our supreme court’s guidance in Hugueley, the trial court in this case did

not “carefully articulate specific reasons,” Id. at 369 (quoting Woodson v. Porter Brown

Limestone Co., 916 S.W.2d 896, 906 (Tenn. 1996), as to whether “the totality of the

circumstances support a finding of purposeful discrimination.” Id. Our supreme court has

held that even if a plausible race neutral explanation has been provided, “[t]he trial court may

not simply accept a proffered race-neutral reason at face value but must examine the

prosecutor’s challenges in context to ensure that the reason is not merely pretexual.”

Hugueley, at 368 (citing Miller-El v. Dretke, 545 U.S. 231 (2005)). The same issue of a trial

court’s failure to explicitly express on the record its reasoning as to the Batson challenges

existed in Hugueley. In that case, however, our supreme court noted that “the sole indication

of purposeful impermissible discrimination by the State in this case is the fact that each of

the peremptory challenges used by the State was employed against an African-American

venire person.” Hugueley, at 373. The court in Hugueley ultimately determined, despite the

trial court’s “barely adequate” findings, Id. at 371, that,

Thus, we are confident that the trial court accurately assessed the

prosecutor’s credibility with regard to his explanations and properly

determined that, under all the circumstances, Defendant had not established

purposeful discrimination by the State in its exercise of its peremptory

challenges.

Hugueley, at 375.

In the case sub judice the only indication of purposeful discrimination is that one

African-American prospective juror was peremptorily challenged by the State. When pressed

by the trial court to state his factual basis of discriminatory purpose by the State, Defendant’s

counsel could only respond that the challenged prospective juror was African-American and

that defense counsel “did not see anything in my preliminary questioning of this jury that

would cause a problem.” Furthermore, defense counsel never requested the trial court to

make explicit findings under the third prong of Batson. We conclude on the merits of the

issue that ultimately the trial court accredited the race neutral reasoning given by the

prosecutor. Defendant is not entitled to relief on this issue.

Sentencing

As to sentencing, Defendant argues that the trial court erroneously used three

inapplicable sentencing enhancement factors found in Tennessee Code Annotated section 40-

35-114(3), (9), and (10), and as result the trial court imposed an “unlawful sentence.”

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Defendant does not challenge the imposition of partial consecutive sentencing. More

importantly as to the issue he does raise, Defendant does not challenge the trial court’s

classification of Defendant as a “career offender” pursuant to Tennessee Code Annotated

section 40-35-108. In this case, Defendant was convicted of three Class C felony offenses

of attempted aggravated robbery and one class D felony offense of attempted aggravated

burglary. As pertinent to Defendant’s status, the following statutory provisions are

applicable:

40-35-108. Career offender. – (a) A career offender is a defendant who

has received:

(1) Any combination of six (6) or more Class A, B or C

prior felony convictions, and the Defendant’s

conviction offense is a Class A, B or C felony;

***

(3) At least six (6) prior felony convictions of any

classification if the Defendant’s conviction offense is

a Class D or E felony.

Tenn. Code Ann. § 40-35-108(a)(1) and (3).

The record reflects that Defendant had many prior convictions. Among the numerous

prior felony convictions are one conviction for the Class B felony of aggravated robbery, and

thirteen prior convictions for the Class C felony offense of aggravated burglary. Clearly,

Defendant was properly classified as a career offender for all sentences in the case sub

judice. It makes no difference as to the length of the sentence for a career offender whether

any enhancement factors are erroneously applied because only one sentence is authorized for

a career offender: the maximum sentence within the applicable Range III. Tenn. Code Ann.

§ 40-35-108(c).

The only appropriate sentence for a career offender who is convicted of a Class C

felony is 15 years. The only appropriate sentence for a career offender who is convicted of

a Class D felony is 12 years. These sentences were imposed on Defendant. Defendant is

entitled to no relief on this issue.

In conclusion, the judgments of the trial court are affirmed.

___________________________________

THOMAS T. WOODALL, JUDGE

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