Court of Criminal Appeals of Tennessee, Knoxville
Session November 15, 2016
from the Criminal Court for Morgan County No. 2010-CR-80 E.
Eugene Eblen, Judge
Defendant, Fred Birchfield, was found guilty by a Morgan
County Criminal Court jury of second degree murder, a Class A
felony, and reckless homicide, a Class D felony. See
T.C.A. §§ 39-13-210 (2014) (second degree murder),
39-13-215 (2014) (reckless homicide). The trial court
sentenced the Defendant to consecutive terms of eighteen
years for second degree murder and three years for reckless
homicide, for an effective twenty-one-year sentence. On
appeal, the Defendant contends that (1) the evidence is
insufficient to support his second degree murder conviction
and (2) the trial court erred by failing to grant his motion
for a change of venue. We affirm the judgments of the trial
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Pate (on appeal and at motion for new trial), Knoxville,
Tennessee, and Michael Hatmaker (at trial) and Brent Gray (at
trial), Jacksboro, Tennessee, for the appellant, Fred
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Russell Johnson,
District Attorney General; and Frank Harvey and Tiffany
Smith, Assistant District Attorneys General, for the
appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ.,
H. MONTGOMERY, JR., JUDGE
case relates to an incident during which the Defendant
fatally shot John C. Robbins and Melissa Norris. At the
trial, the recording of a 9-1-1 call was played for the jury.
In the recording, the Defendant told the dispatcher that two
people were dead on the road in front of his home. The
Defendant stated that "they" pulled their vehicle
over, that "they" pulled out a .44-caliber firearm,
and that the Defendant shot "them." The Defendant
identified Mr. Robbins and referred to Ms. Norris as Blondie.
The dispatcher asked the Defendant to calm down.
Defendant told the 9-1-1 dispatcher that Mr. Robbins
displayed a .44-caliber pistol, that the Defendant
"jumped out" of his vehicle, that the Defendant had
a .22-caliber pistol, that Mr. Robbins said he would
"blow off" the Defendant's head, and that the
Defendant told Mr. Robbins that Mr. Robbins "did not
have to do that." The Defendant said that before the
shooting, he pulled his vehicle beside the victims' truck
because "they came down here starting some stuff."
T he Defendant said that his hand was bleeding because Mr.
Robbins shot Mr. Robbins's gun at the Defendant and that
the Defendant "jerked" Mr. Robbins's gun out of
Mr. Robbins's hand. The Defendant said that after he got
out of his vehicle, he told Mr. Robbins to shoot him because
he would rather be shot by a friend than by someone who
"snuck around [his] back." The Defendant said he
"just shot" the guns and did not know where the
victims had been injured. T he Defendant stated that he fired
his gun until it was empty, that he fired Mr. Robbins's
.44-caliber gun until it was empty, and that afterward, he
threw Mr. Robbins's gun at Mr. Robbins, who was still
inside the truck.
Morgan County Sheriff's Deputy Rick Hamby testified that
on May 29, 2010, he responded to the scene and that the
Defendant waved for the deputy to stop. Deputy Hamby said
that the Defendant showed him Mr. Robbins's truck and
that the Defendant reported a "gunfight" with Mr.
Robbins, who was deceased inside the truck. Deputy Hamby knew
Mr. Robbins and said a woman, whom the Defendant referred to
as Blondie, was also deceased inside the truck.
Hamby testified that although he did not question the
Defendant about the shooting, the Defendant stated that the
victims had driven by the Defendant's home several times,
that the victims were cursing and yelling at the Defendant,
and that Blondie called the Defendant a "suck a--."
Deputy Hamby said the Defendant reported that he saw the
victims turn on the road across from the Defendant's home
and that a "short time" later the Defendant heard
three or four gunshots, which the Defendant thought sounded
like a .22-caliber or a .22-caliber magnum firearm. Deputy
Hamby said the Defendant stated that he drove to Lawrence
Ellis's home just down the road and that when the
Defendant was driving home, the victims pulled their truck
beside the Defendant's truck. The Defendant said that Mr.
Robbins told the Defendant that the Defendant owed Ms. Norris
an apology and that the Defendant refused and said "f---
that b----." Deputy Hamby said the Defendant explained
that the Defendant and Mr. Robbins each admitted they were
carrying guns, that the Defendant got out of his truck and
suggested the men be friends, that the Defendant walked to
Mr. Robbins's truck window, that the Defendant
"reached for [Mr. Robbins's] gun . . . and that it
went off." Deputy Hamby said the Defendant also
explained that the Defendant fired his gun until "it
went empty" and that the Defendant took Mr.
Robbins's gun and fired it until it was also empty. D
eputy Hamby said that the Defendant stated, "I
didn't mean to kill that girl, but I'm glad
they're dead. I don't have to look behind me
cross-examination, Deputy Hamby testified that he arrived at
the scene around 1:00 a.m., that the Defendant was
cooperative, and that the Defendant's left hand was
hurting, although the deputy did not examine the hand. Deputy
Hamby said that the Defendant did not appear to have cleaned
County Sheriff's Deputy Caleb Pemberton testified that he
drove the Defendant to the hospital to determine his blood
alcohol concentration and that during the drive, the
Defendant said he was "afraid of Morgan County" and
feared for his life. Deputy Pemberton said the Defendant
explained that Mr. Robbins pulled out a gun, that the
Defendant shot Mr. Robbins and took Mr. Robbins's gun,
and that the Defendant shot Mr. Robbins again. Deputy
Pemberton said that the Defendant stated that before the
shooting, the victims turned onto the road across from the
Defendant's home, that the Defendant later heard four or
five gunshots that he thought came from a .22-caliber or
.22-caliber magnum firearm, that the Defendant had been at a
friend's home when he heard the gunshots, and that the
Defendant decided to go home after hearing the gunshots.
Deputy Pemberton said that the Defendant explained that
during the drive home, he pulled his vehicle beside the
victims' truck on the road, that Mr. Robbins pulled out a
gun, that the Defendant pulled out his gun and shot at Mr.
Robbins, that the Defendant took Mr. Robbins's gun from
Mr. Robbins, and that the Defendant shot Mr. Robbins with Mr.
Robbins's gun. Deputy Pemberton recalled the
Defendant's saying, "I won't be railroaded by
[Mr. Robbins] no more. [ Mr. Robbins] ran over me before[, ]
and I'm not going to go through that again."
cross-examination, Deputy Pemberton testified that he did not
examine the victims' truck but that he saw a gun lying
inside the truck. He did not notice any cartridge casings
inside the truck. He agreed the Defendant was cooperative.
County Sheriff's Deputy Mike Wren testified that when he
arrived at the scene, he saw a black truck parked in the
middle of the road. He said the truck's lights were on,
the engine was running, and the truck was in second gear but
not moving. A photograph showed the front bench seat inside
the truck. The photograph showed Ms. Norris on the right end
of the seat, slumped toward the passenger door, and it showed
Mr. Robbins in the middle of the seat slumped toward Ms.
Norris. D eputy Wren said that the driver's door was not
open when he arrived and that the passenger-door window was
shattered. Deputy Wren knew Mr. Robbins.
Wren testified that the distance between the ground and the
bottom of the driver's side window was four feet, two and
one-half inches. He said that a .44-caliber magnum revolver,
which was pointed toward Ms. Norris, was found on Mr.
Robbins's lap and that the revolver contained cartridge
casings. He said that a .22-caliber semi-automatic Ruger,
which contained eleven unfired bullets, was also found inside
the truck and that the firearm was found between Mr. Robbins
and the center console. He noted the Ruger was not visible
from the driver's door.
Wren testified that a nine-shot revolver, containing eight
cartridge casings and one unfired bullet, was found inside
the Defendant's truck. D eputy Wren said that forty-four
.22-caliber unfired bullets were found inside the
Defendant's pants pockets.
Wren testified that Mr. Robbins's truck was secured,
towed, and searched. Deputy Wren said that inside the cab and
the bed of the truck, he found a suitcase, a twelve-pack or
eighteen-pack of beer, a bottle of wine, and six to twelve
marijuana plants. He said that Tennessee Bureau of
Investigation (TBI) Agent Legg found a bullet lodged in the
center console. Deputy Wren recalled that the medical
examiner found a bottle of pills and a smoking pipe in Ms.
cross-examination, Deputy Wren testified that the pipe found
in Ms. Norris's clothes appeared to be used to smoke
amphetamines and cocaine, but not necessarily marijuana. D
eputy Wren agreed that he found open beer cans and a butane
lighter inside the truck and that attached to a seat belt, he
found a set of leg irons, which he assumed was decorative. He
agreed he found boxes of bullets for the .44-caliber and