State v. Durham, E1999-02640-CCA-R3-CD
| Decision Date | 12 April 2001 |
| Docket Number | E1999-02640-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. CARL PRESTON DURHAMIN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE |
| Court | Tennessee Court of Criminal Appeals |
The defendant, Carl Preston Durham, was indicted for two counts of first degree murder (premeditated and felony), aggravated robbery, and conspiracy to commit aggravated robbery in connection with the murder of the victim, Rene Earl Cabirac, Sr. After a nine-day trial, verdicts of guilt were rendered on all four charges. At the conclusion of the guilt phase of the trial, the trial court merged the defendant's two first degree murder convictions and the jury sentenced the defendant to life imprisonment without the possibility of parole. The trial court found the defendant to be a career offender and imposed a concurrent sentence of 30 years for the aggravated robbery and a consecutive sentence of 15 years for the conspiracy. The effective sentence is, therefore, life without the possibility of parole plus fifteen years. Because there was no prejudicial error, the convictions and sentences are affirmed; however, because the trial court failed to indicate on the judgment form a merger of the felony murder and the premeditated murder, the judgment is modified to reflect a single conviction for first degree murder.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed as Modified.
Gary R. Wade, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.
A. Christian Lanier, III (on appeal), and Edward T. Landis (at trial), Chattanooga, Tennessee, for the appellant, Carl Preston Durham.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; William Cox, District Attorney General; and Thomas J. Evans, Assistant District Attorney General, for the appellee, State of Tennessee.
In this appeal as of right, the defendant raises the following issues:
1.whether the evidence is sufficient;
2.whether the trial court erred by allowing Staci Price, the wife of co-defendant David Eric Price, to testify over co-defendant Price's assertion of the marital privilege;
3.whether the trial court erred by excluding photographs of Staci Price engaged in sexual relations with a police officer;
4.whether the trial court erred by allowing testimony regarding the defendant's previous criminal history;
5.whether the trial judge erred by failing to recuse;
6.whether the trial court erred during voir dire by failing to excuse two jurors for cause;
7.whether the state committed prosecutorial misconduct by failing to grant the defendant immunity and by misplacing certain evidence;
8.whether the trial court erred by failing to sever the trial from that of co-defendant Price;
9.whether the trial court erred by failing to grant a change of venue;
10.whether the trial failed to grant the defense a sufficient number of peremptory challenges;
11.whether the trial court erred by failing to provide the defendant with a list of prospective jurors prior to voir dire;
12.whether the state violated Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection;
13.whether the trial court erred by admitting photographs of the body;
14.whether the trial court erred by allowing the state to use pretrial statements to refresh the recollections of two of its witnesses;
15.whether the trial court erred by failing to declare a mistrial after the state referred to the defendants as "murderers and thieves;"
16.whether the trial court erred in its instructions to the jury on the crime of first degree murder; and
17.whether the sentence for first degree murder is excessive and whether consecutive sentencing was proper.
On several occasions prior to the robbery and murder of the victim, Rene Earl Cabirac, Sr., Staci Price, the wife of the co-defendant, David Eric Price, had heard the defendant say, "Let's go rob Rene." On May 26 or 27 of 1996, she overheard the defendant and Price discuss robbing the victim. According to Ms. Price, these discussions were always initiated by the defendant.
On May 28, 1996, Ms. Price worked from 5:00 p.m. to 10:00 p.m. at Winn Dixie before returning to the apartment she shared with her husband, their infant son, the defendant, and the defendant's girlfriend, Jeannie Bliek. Ms. Bliek, who was caring for the child, was the only adult at home. By 11:00 p.m., when Ms. Price left the apartment to return some movies to a Blockbuster video store, neither the defendant nor Price had telephoned or returned to the apartment. Shortly after Ms. Price's return from Blockbuster, the defendant returned, but soon left to look for Price, who was supposed to meet him at a Goody's department store on Gunbarrel Road. Later, the defendant telephoned to say that he had not found Price. He reported that he had driven by the victim's home a couple of times, had seen the victim's dog running loose in the yard, and was beginning to get anxious. At approximately 12:30 a.m., the defendant came back to the apartment to pick up Ms. Bliek, who agreed to assist in the search.
According to Ms. Price, her husband called the apartment shortly after Ms. Bliek left. Upon learning that neither the defendant nor Ms. Bliek was at the apartment, Price asked her for a ride but directed her not to bring their son. When Ms. Price arrived at the meeting area designated by Price, she found him driving a gold-colored Jaguar that belonged to the victim. Price directed her to follow, drove to a residence located behind a church, and parked the Jaguar. Price's clothing was covered with blood. He explained that he had killed the victim's dog.
Upon returning to the apartment, Price took a shower and his wife placed the bloody clothing in the washing machine. Price was dressing when the defendant and Ms. Bliek returned to the residence. When the defendant asked what had happened, Price replied that things had not developed as planned. When the defendant learned about Price's bloody clothing, he retrieved the clothing from the washing machine and placed the items in a plastic garbage bag. Because the victim's car was parked in his neighborhood, the defendant suggested that they move it. The defendant also directed Price to change into clothing that would be more appropriate for someone driving a Jaguar automobile. When the two men left, the defendant was carrying a garbage bag containing Price's bloody clothing. Later, they returned and informed Ms. Price that they had taken the Jaguar to Dalton, Georgia, and left it in a hotel parking lot. The defendant also told her that he had disposed of Price's clothes. Price assured the defendant that he had gotten most of the blood off of the car and had removed any fingerprints.
At trial, Ms. Price testified that her husband informed the defendant that he had gone to the victim's residence and struck the victim on the head with the defendant's tire iron, but that the victim merely put his hand on the back of his head and remained conscious. Price related that a struggle ensued and that when he demanded to know the location of the Jaguar keys and conducted a search, the victim attempted to hide in another room of the house. Price confessed that when he was unable to find the keys, he kicked open the door where the victim was hiding and stabbed him to death with a knife. Price revealed that he then poured lighter fluid on the victim's face and unsuccessfully attempted to burn both the victim and the house.
According to Ms. Price, her husband and the defendant returned to the victim's residence on May 29. Because the defendant had driven his car past the victim's house several times the night before, the two men, who were concerned about appearing "suspicious," obtained permission to use Ms. Price's vehicle. They arrived back at the apartment with an array of stolen guns, jewelry, and money, including rolled coins. The defendant kept the paper money, which amounted to approximately $50. They disposed of the guns through the defendant's brother because "he knew some connections." Ms. Price recalled that upon returning from the victim's residence, the defendant stated that one of the victim's fists had been "clenched real tight like he had something in [it]." The defendant related that he had tried to pry the victim's fist open, but was unable to do so. He advised Price: "'I hope you didn't lose anything or him grab anything of yours with that hand because I could not break it, I could not get his fist open for anything.'" That same afternoon, the defendant and Price placed items that Price had handled while at the victim's home, including remote controls, garage door openers, and paperwork from the Jaguar's glove box, into a small purple duffel bag belonging to Ms. Price. The defendant stated that he was going to dispose of it and Ms. Price did not see the duffel bag again.
Ms. Price also recalled that her husband's friend, Kevin Green, was initially included in the plan to rob the victim. When Green chose not to participate, however, the defendant threatened Green in order to keep him quiet: "'Don't say an f-ing word to anybody or I'll kill you.'"
According to Ms. Price, the defendant attempted to bribe her and her husband in order to ensure that they did not report his involvement in the crime to police. She recalled that the defendant agreed to give them his Camaro, to be used as a trade-in, plus $2000 cash to obtain a new vehicle. On the day that the defendant was supposed to meet them at Economy Honda to complete the transaction, however, the defendant never appeared.
Craig Johnson of the Chattanooga Police Department photographed and videotaped the crime scene. He testified that the body was found in the computer room of the residence. The victim was missing a shoe and had a torn shirt with missing buttons. There was blood...
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