State of Tennessee v. Stanley Blue

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 5, 2015

STATE OF TENNESSEE v. STANLEY BLUE

Appeal from the Criminal Court for Shelby County

No. 0402312 James C. Beasley, Jr., Judge

No. W2014-01728-CCA-R3-CD - Filed June 17, 2015

A Shelby County jury convicted the Defendant, Stanley Blue, of facilitation of first

degree premeditated murder, attempted second degree murder, and reckless

endangerment. Following a grant of post conviction relief and a remand for

resentencing, the trial court sentenced the Defendant to an effective term of forty-six

years as a Range III, persistent offender. The Defendant challenged the length of his

sentence on appeal, and this Court reversed the Defendant=s sentences for attempted

second degree murder and reckless endangerment. We remanded the case for a new

sentencing hearing regarding these two convictions and affirmed all other judgments of

the trial court. State v. Stanley Blue, No. W2013-00437-CCA-R3-CD, 2014 WL

1464177, at *9 (Tenn. Crim. App., at Jackson, April 14, 2014). On remand, the trial

court conducted a sentencing hearing and imposed a total effective sentence of forty-four

years. On appeal, the Defendant asserts that the trial court erred when it imposed

consecutive sentences. After a thorough review of the record and applicable law, we

affirm the trial court=s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA MCGEE

OGLE and ROGER A. PAGE, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Stanley Blue.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Reginald Henderson,

Assistant District Attorney General for the appellee, State of Tennessee.

OPINION

I. Trial

This case arises from the shooting of two victims, Mareco Robinson and Jessie

Lewis, inside Brown=s Barbecue restaurant in Memphis, Tennessee on March 11, 2003.

Mr. Robinson died from his wounds. This Court summarized the underlying facts on the

initial direct appeal as follows:

Toya Sanders testified that she and Robinson were childhood friends.

She recalled that she saw Robinson at a club, the Hard Luck Café, on the

night of March 11, 2003, and that everyone there was A[h]aving a good

time.@ She admitted that she had smoked some marijuana that night but

said that she did not drink. She stated that the [D]efendant, whom she had

known since childhood as APuff,@ was also at the club that night. She saw

the [D]efendant and another male, whom she later learned through the

course of the investigation was Eddie Partee, leaving the club in a Cadillac.

After leaving the club at approximately 3:00 a.m., Sanders and her friends

decided to go to Brown=s Barbecue to get something to eat. When they

arrived at Brown=s Barbecue, the [D]efendant and Partee were already at the

restaurant. Soon after she and her friends arrived, Robinson arrived at the

restaurant.

Sanders testified that the [D]efendant went out to his car while

Partee waited in line for his order. She recalled that Robinson and Partee

exchanged words about Robinson=s order while waiting in line. Robinson

went outside to his car and Partee followed him but went to the

[D]efendant=s vehicle where Sanders witnessed Partee and the [D]efendant

talking. When Robinson returned to the restaurant, Partee and the

[D]efendant followed him. While the [D]efendant went to the bathroom,

Partee pulled a gun and shot Robinson in the back of the head. As soon as

Partee shot Robinson, the [D]efendant came out of the bathroom shooting

Aa little old bitty gun.@ Everyone fled the restaurant for safety. Sanders

saw Partee and the [D]efendant leave the restaurant, get into the Cadillac

and flee the scene.

Sanders testified that as everyone was leaving the restaurant, Jessie

Lewis was walking in. She said that Partee and the [D]efendant shot Lewis

as he was entering the restaurant. She stated that as the men returned, she

Awas trying to get everybody out@ because she could tell that something was

about to happen when the men went outside to the parking lot. Sanders

testified that she never saw Robinson threaten or display a weapon to either

the [D]efendant or Partee, but she also admitted that she could not see

whether Robinson retrieved anything from his car while he was outside

listening to music with his hood up.

Jessie Lewis testified that he spoke with Robinson at Brown=s

Barbecue on the night of March 11, 2003. He recalled Robinson telling

him that Asomething was wrong with [Partee].@ Before Robinson could

explain to Lewis what he meant, Partee entered the restaurant and shot him.

Lewis had turned his back to Robinson but upon hearing the shot, he

turned around and saw Partee standing over Robinson holding the gun.

Lewis stated that the [D]efendant walked from the bathroom and fired two

more shots toward Robinson as he lay on the ground. Lewis recalled that

everyone except him had left the restaurant with the firing of the first shot.

He said that he was standing at the door Aso shocked, [he] couldn=t go

nowhere [sic]@ when the [D]efendant came from the bathroom. The

[D]efendant and Partee walked to the front door and saw Lewis. The

[D]efendant then Abumped Partee in the back,@ and Partee Alooked at

[Lewis] and kicked the door open and shot [him].@ Lewis was shot in the

groin with the bullet exiting through his hip. He saw the [D]efendant and

Partee leave in the Cadillac with Partee driving. Lewis later identified the

[D]efendant as one of the individuals involved in the shooting. Lewis also

stated that he did not see Robinson with a gun.

Kevia Taylor testified that she was with her cousin, Toya Sanders, at

Brown=s Barbecue on March 11, 2003. Her testimony was consistent with

Sanders= testimony regarding the events leading up to the shooting. She

witnessed Partee go to a vehicle, retrieve a pistol and load it before

returning to the restaurant. She recalled that the [D]efendant looked at

Partee as they returned to the restaurant and she took that as a signal

between the two men. Taylor stated that she Aknew something was fixing

to go down@ so she started to leave the restaurant. As she was leaving, she

heard the gunshots. She ran behind a building and did not see the

[D]efendant or Partee leave. Afterwards, she saw that Lewis had been shot

as well as Robinson. Taylor later identified the [D]efendant from a

photographic lineup. Taylor admitted that she saw Robinson open the

hood of his car and go to his trunk, but she could not see whether he got

anything from the trunk before returning to the restaurant.

Memphis Police Department Officer Kimberly Houston testified that

she responded to the scene of the shooting at Brown=s Barbecue on March

11, 2003. When she arrived, she observed a black male on the floor

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suffering from a gunshot wound to the head and another black male sitting

on a bench who had been shot in the leg. The man with the wound to the

head was alive and conscious. She recalled that he was mumbling as if

attempting to say something but that she could not understand him. She

tried to calm him and tell him to stop talking; as she heard the ambulance

approach, she looked to discover that he was no longer breathing. When

the paramedics arrived, the man with the wound to his leg was treated and

taken to the hospital by ambulance. Officer Houston stayed at the scene

until the deceased victim was removed. Officer Houston also testified that

she secured witnesses at the scene until more officers arrived to get

information and statements from them.

Memphis Police Department Lieutenant Daniel Parris testified that

he was assigned to the crime scene unit at the time of the offenses. He

related that his general duties consisted of documenting the facts and

physical evidence of a crime scene through photographs, sketches, and

recovered evidence. Lieutenant Parris sketched the crime scene at Brown=s

Barbecue. He documented eight items at the scene, including blood, a spent

bullet, bullet holes and strikes, and two forty caliber shell casings.

Kcbena Cash of the Memphis Police Department testified that the

[D]efendant was developed as a suspect in the shootings within a week of

the incident. After a warrant was issued for the [D]efendant=s arrest,

Officer Cash began to look for the [D]efendant. After Officer Cash talked

to several family members and acquaintances of the [D]efendant, the

[D]efendant telephoned Officer Cash himself. She explained to the

[D]efendant that there was a warrant issued for him and asked him to come

in voluntarily. She recalled that the [D]efendant did not agree to turn

himself in. As she continued her efforts to locate the [D]efendant, she

spoke with the [D]efendant daily on the telephone. She recalled that he

always contacted her on private numbers. She testified that each time they

talked A[t]he gist of the conversation was to turn himself in.@ Eventually,

Officer Cash received a phone call or Atip@ that led her to a possible location

of the [D]efendant. Upon arrival at the residence, the [D]efendant was

gone but a forty caliber handgun was discovered and taken into property at

the Memphis Police Department. Eventually, Officer Cash received

another tip regarding the [D]efendant=s whereabouts at a different residence

and he was apprehended there while trying to escape from a window.

Additionally, another handgun and forty caliber ammunition were found at

the residence. On cross-examination, Officer Cash admitted that the

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[D]efendant was not found at the first residence searched and that no one

knew who left the forty caliber handgun at the residence.

Sergeant William D. Merritt of the Memphis Police Department

testified that he acted as the case coordinator on the [D]efendant=s case. As

part of his duties as the case coordinator, he sent items to the Tennessee

Bureau of Investigation (TBI) for testing. Sergeant Merritt sent a Keltec

forty caliber handgun, two forty caliber shell casings, one bullet projectile,

and a Ruger nine millimeter semi-automatic to the TBI for analysis.

Sergeant Merritt testified that the Ruger was recovered near a dumpster

outside the restaurant. He further stated that his investigation revealed that

Mario Broadnax had taken the Ruger from the victim and placed it near the

dumpster.

TBI Special Agent Steve Scott testified as a firearms identification

expert. After identifying the items submitted by Sergeant Merritt, Special

Agent Scott determined that the spent cartridges and bullet recovered at the

scene had been fired by the Keltec handgun. Testing of the Ruger pistol

revealed that it would eject a shell casing much like the Keltec; however, no

shell casings matching the Ruger were discovered at the scene. Special

Agent Scott stated that the forty caliber bullet recovered from the victim=s

body was fired from a revolver-either a Smith and Wesson Special Revolver

or a Remington Magnum Revolver-and not a semi-automatic pistol like the

Keltec or Ruger. The gun that fired the bullet recovered from the victim

was not presented to the TBI for testing.

Dr. O=Brian Smith testified that he was the Shelby County Medical

Examiner at the time of the shooting and that he performed the autopsy on

the victim and determined that he suffered a gunshot wound to the right side

of his head behind his ear that produced brain damage before the bullet

came to rest in the front portion of the victim=s brain. Toxicology testing

of the victim=s blood revealed a .203 grams percent blood alcohol content

which Dr. Smith characterized as Amoderately elevated.@ Toxicology

testing revealed no presence of drugs. Dr. Smith testified that the cause of

death was a gunshot wound to the head and opined that Ain most instances,

this bullet . . . wound would have a lethal outcome.@

The State presented the prior sworn testimony of Mario Broadnax

which was read to the jury by a court reporter. . . . Broadnax testified that

he had been at the Hard Luck Café on the night of the incident and that he

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had not been drinking that night, although he did admit to smoking one or

two marijuana cigarettes earlier in the evening. He went to Brown=s

Barbecue after leaving the club and recalled seeing the victim there when he

arrived. He could tell that the victim and some other men were arguing

and he saw Aone or two people@ go inside the restaurant with guns.

Broadnax testified that when he heard gunshots he ran to the back of the

building. When he returned to the front of the parking lot, he discovered

the surviving victim, Jessie Lewis, lying on the ground with a gunshot

wound. He ran inside to check on the other victim, Mareco Robinson, who

was still breathing. He told the employees to call the police.

Broadnax stated that another witness indicated to him that the victim

had a weapon so he returned to the victim, removed the gun from the

victim=s belt, and hid it behind the restaurant. Other witnesses told the

police that Broadnax removed the gun so, several days later, he led the

police to the location of the gun. He explained that he removed the gun

because he Afelt that if [the police] came and found a gun on [the victim],

you know, that they probably wouldn=t, you know, try to find out who did

it.@ Broadnax identified the [D]efendant as one of the people he saw at the

restaurant that night. He also stated that he removed the gun from

underneath the victim=s shirt. He admitted on cross-examination that he

could not see who fired the shots because he ran behind the building when

the shooting began. After the reading of Broadnax=s testimony, the State

rested its case-in-chief.

The [D]efendant presented the testimony of Daryl Powell, who

stated that he was at Brown=s Barbecue on the night of the shooting. He

recalled that he was there sleeping but that he Awasn=t supposed to be@ there.

He said that he was asleep in a booth when the argument between the

victim and the other men woke him up. He said that he knew the victim by

his neighborhood nickname of AC-Murder.@ He saw the victim go to his

car and return to the restaurant with a black gun in his hand. He testified

that everyone in the restaurant Ajust went hysterical@ and the shooting

began. He did not know the man who shot the victim. He reiterated that

he saw a gun in the victim=s hand when the shooting occurred. He testified

that when one person shot the victim he just dropped and then another

individual began shooting as well. He saw the two shooters leave the

scene in a Cadillac. On cross-examination, Powell was confronted with his

statement to police that failed to mention the presence of the victim=s gun.

He explained that maybe the police did not write that down and that he did

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not want Ato be in everybody else=s business@ but that he definitely saw the

victim with a gun.

Calandra Shaw testified that she was working at Brown=s Barbecue

on the night of the shooting. She had worked at the restaurant for about

fifteen years and knew the victim, AReco,@ as a regular customer. She

recalled that Reco and another man argued at the front counter for about ten

minutes. She recalled that the other man left the restaurant and, about ten

minutes later, she heard shooting. Shaw testified that she crawled to lock

the door so no one else would come inside during the shooting. She stated

that she heard a quick series of gunshots. When the shooting ended, she

stood up to see the victim fall to the floor. She saw a man in a yellow shirt

remove a gun from the victim=s pocket. On cross-examination, she stated

that she did not see the victim get shot, but she did see him fall to the

ground after being shot.

Memphis Police Department Officer Danny James testified that he

worked as a crime scene officer at the time of the shooting. He stated that

he photographed the location of a gun found on the steps outside the

restaurant.

State v. Stanley Blue, No. W2007-00292-CCA-R3-CD, 2009 WL 723845, at *1-5 (Tenn.

Crim. App. Mar. 19, 2009), perm. app. denied (Tenn. Oct. 5, 2009). Based upon this

evidence, a Shelby Count jury convicted the Defendant of facilitation of premeditated

first degree murder, attempted second degree murder, and reckless endangerment. Id. at

*1. The trial court imposed sentences of thirty-four years, fifteen years and six years,

respectively; the trial court also ordered the thirty-four-year sentence to be served

consecutively to the six-year sentence for a total effective sentence of forty years. Id.

The Defendant appealed, and the trial court=s judgments were affirmed. Id. at *10.

B. Post-Conviction and Resentencing

Thereafter, the Defendant filed a petition for post-conviction relief, in which he

alleged that his sentence was illegal. The post-conviction court agreed, and it remanded

the case for a new sentencing hearing. This Court affirmed the post-conviction court=s

decision on appeal by the State. Stanley Blue v. State, No. W2011-01936-CCA-R3-PC,

2012 WL 3362270, at *1 (Tenn. Crim. App. Aug. 15, 2012). At the new sentencing

hearing, the trial court determined that the Defendant=s sentencing range for attempted

second degree murder, which it classified as a Class A felony, was forty to sixty years.

The trial court sentenced the Defendant to forty years for facilitation of first degree

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premeditated murder and to forty years for attempted second degree murder and ordered

that the sentences run concurrently. The trial court also determined that the Defendant=s

sentencing range was four to six years as a Range III persistent offender for reckless

endangerment, a Class E felony, and it imposed a consecutive six-year sentence for the

reckless endangerment conviction, for a total effective sentence of forty-six years. Blue,

2014 WL 1464177, at *6. On appeal, this Court concluded that the trial court had

improperly classified the attempted second degree murder conviction as a Class A felony.

Id. at *7. This Court also concluded that the trial court erred when it determined that

the Defendant was a Range III persistent offender for the purposes of his reckless

endangerment conviction. Id. at *7-8. We reversed the judgments and remanded the

case to the trial court for a new sentencing hearing on the attempted second degree

murder and reckless endangerment convictions. Id. at *8. We affirmed the trial court=s

imposition of partial consecutive sentencing. Id. at *9.

After remand, the second resentencing hearing was held on August 22, 2014,

during which the presentence report was admitted into the record. As to the attempted

second degree murder conviction, the trial court found that the Defendant was a Range III

persistent offender. The trial court considered the following enhancement factors: (1)

that the Defendant had a previous history of criminal convictions; (2) that the Defendant

employed a firearm during the commission of the attempted murder; and (3) that the

Defendant committed delinquent acts as a juvenile that would have constituted felonies if

committed as an adult. See T.C.A.  40-35-114(1), (9), and (16) (2014). The trial court

stated that it was taking into account the applicable mitigating factors, including the

Defendant=s Amental status.@ The trial court went on to state that the offenses were Avery

aggravated@ and that the Defendant exhibited a Atotal lack of consideration [for] the

well-being@ of the people involved. The trial court found that Aconfinement [was]

necessary to avoid deprecating how serious this offense was.@ On that basis, the trial

court sentenced the Defendant for his attempted second degree murder conviction to

thirty years as a Range III persistent offender. The trial court stated that this sentence

would run concurrently with the Defendant=s four-year sentence for facilitation of first

degree premeditated murder.

As to the Defendant=s reckless endangerment conviction, the trial court noted that,

by agreement between the State and the Defendant, the Defendant would be sentenced as

a Range II multiple offender. The trial court found that the Defendant had a previous

history of criminal convictions necessary to establish sentencing Range II, and imposed a

sentence of four years. As to consecutive sentencing, the trial court made the following

finding:

[T]he Court finds that [the Defendant] is an offender whose record

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of criminal activity is extensive. I further find that he is a dangerous

offender whose behavior indicates little or no regard to human life, that he

had no hesitation about committing this offense in which the risk to human

life was high, that the circumstances surrounding the commission of this

offense were extremely aggravated, the danger that he placed everybody in

inside that restaurant is extremely aggravated, that confinement for an

extended period of time is necessary to protect society from [the Defendant]

and his unwillingness to lead a productive life and his resort to criminal

activity in furtherance of that anti societal lifestyle, and finally, that the

aggregate length of the sentence reasonably related to the offense for which

the [D]efendant stands convicted. A man was killed, another man

seriously injured, many people were endangered.

With the extensive record that [the Defendant] has, the Court feels

that it=s appropriate that those sentences should be served consecutive[ly].

So I will order that count three, the reckless endangerment with a deadly

weapon, should be served consecutive to count one, that facilitation to

commit [first degree premeditated] murder.

The trial court imposed a total effective sentence of forty-four years. It is from this

judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant asserts the trial court erred when it imposed consecutive

sentences. He contends that the trial court failed to apply the principles of sentencing

and failed to consider the shorter sentence that the Defendant=s co-defendant received.

The State responds that, in the prior appeal of the Defendant=s sentence, this Court

approved the imposition of consecutive sentencing and thus, the law of the case disposes

of the Defendant=s claim. The State argues in the alternative that the trial court did not

abuse its discretion when it imposed partial consecutive sentencing.

Under the law of the case doctrine, a court generally may not reconsider issues that

have been decided in a prior appeal of the same case. State v. Jefferson, 31 S.W.3d 558,

560-61 (Tenn. 2000). The doctrine is most often invoked when a trial court encounters a

previously litigated issue in the course of carrying out an appellate court=s instructions upon

remand. The rule is Abased on the common sense recognition that issues previously litigated

and decided by a court of competent jurisdiction ordinarily need not be revisited.@ Memphis

Publ=g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.

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1998). The rule Apromotes the finality and efficiency of the judicial process, avoids

indefinite relitigation of the same issue, fosters consistent results in the same litigation, and

assures the obedience of lower courts to the decisions of appellate courts.@ Id.

We agree that this issue of partial consecutive sentencing was argued and decided

on appeal in a prior opinion of this Court when we concluded that Athe trial court=s

imposition of partial consecutive sentences is supported by the record.@ Blue, 2014 WL

1464177, at *9. The Defendant=s sentence, however, was changed during resentencing,

and the trial court readdressed the issue of whether consecutive sentencing was

appropriate. Therefore, while the State=s argument is well taken, we will address the

issue of consecutive sentencing on its merits in this appeal.

Under the Tennessee Criminal Sentencing Reform Act of 1989 and its

amendments, a trial court may impose a sentence within the applicable range as long as

the imposed sentence is consistent with the Act=s purposes and principles. T.C.A. '

40-35-210(c)(2), (d) (2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).

In State v. Bise, the Tennessee Supreme Court announced that Asentences imposed by

the trial court within the appropriate statutory range are to be reviewed under an abuse of

discretion standard with a >presumption of reasonableness.=@ 380 S.W.3d 682, 708 (Tenn.

2012). A finding of abuse of discretion A>reflects that the trial court=s logic and reasoning

was improper when viewed in light of the factual circumstances and relevant legal principles

involved in a particular case.=@ State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting

State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record

must be void of any substantial evidence that would support the trial court=s decision.

Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001); State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should

uphold the sentence Aso long as it is within the appropriate range and the record demonstrates

that the sentence is otherwise in compliance with the purposes and principles listed by statute.@

Bise, 380 S.W.3d at 709-10. In other words, so long as the trial court sentences a defendant

within the appropriate range and properly applies the purposes and principles of the

Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may

order sentences to run consecutively if it finds any one of the statutory criteria by a

preponderance of the evidence. See also State v. Wilkerson, 905 S.W.2d 933, 936 (Tenn.

1995). As it relates to this case, the trial court found the following criteria applicable:

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(2) The defendant is an offender whose record of criminal activity is

extensive;

(4) 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;

T.C.A. ' 40-35-115(2) and (4). These criteria are stated in the alternative; therefore,

only one need exist to support the imposition of consecutive sentencing. See id.; State v.

Denise Dianne Brannigan, No. E2011-00098-CCA-R3-CD, 2012 WL 2131111, at *19

(Tenn. Crim. App., at Knoxville, June 13, 2012), no Tenn. R. App. P. 11 application filed.

The imposition of consecutive sentencing, however, is subject to the general sentencing

principles that the overall sentence imposed Ashould be no greater than that deserved for

the offense committed@ and that it Ashould be the least severe measure necessary to

achieve the purposes for which the sentence is imposed [.]@ Wilkerson, 905 S.W.2d at

939; T.C.A. ' 40-35-103(2), (4). We review a trial court=s decision to impose

consecutive sentences for an abuse of discretion with a presumption of reasonableness.

State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).

Our review of the record reflects that the trial court specifically addressed the

required sentencing factors and principles as required by Wilkerson. The facts contained

in the record show that the Defendant brandished a weapon inside a crowded public

restaurant, causing the patrons to flee in fear. He then fired at and shot two men, killing

one of them, which supports the conclusion that the sentence imposed was necessary to

protect the public and reasonably relates to the severity of the offense. See State v.

Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995). Moreover, the trial court properly

applied consecutive sentencing criteria (2) and (4). The record supports that,

respectively, the Defendant had an extensive record of criminal activity and that the

Defendant=s behavior showed little regard for human life. Accordingly, we conclude that

the record demonstrates that consecutive sentencing was appropriate in this case and that

the trial court did not abuse its discretion when it imposed consecutive sentences. The

Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

trial court=s judgments.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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