Assigned on Briefs January 6, 2015.
Appeal from the Circuit Court for Crockett County No. 4326 Clayburn L. Peeples, Judge.
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.
Alan E. Glenn, J., delivered the opinion of the court, in which Camille R. McMullen and Roger A. Page, JJ., joined.
ALAN E. GLENN, JUDGE.
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.
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 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 ...