State v. Price

• Decision Date: 26 February 2001
• Citation: 46 S.W.3d 785
• Parties: STATE of Tennessee v. David Eric PRICE.
• Court: Tennessee Court of Criminal Appeals

46 S.W.3d 785

STATE of Tennessee v. David Eric PRICE.

Court of Criminal Appeals of Tennessee, at Knoxville.

July 25, 2000.

Application for Permission to Appeal Denied February 26, 2001.

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J. William Pope, Jr., Chattanooga, TN, for appellant, David Eric Price.

Paul G. Summers, Attorney General and Reporter, Marvin S. Blair, Jr., Assistant Attorney General, William Cox, District Attorney General, and Thomas J. Evans, Assistant District Attorney General, for appellee, State of Tennessee.

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Application for Permission to Appeal Denied by Supreme Court February 26, 2001.

OPINION

WADE, P.J., delivered the opinion of the court, in which SMITH and WITT, JJ., joined.

The defendant, David Eric Price, appeals convictions of first degree murder, aggravated robbery, and conspiracy to commit aggravated robbery, for which he received an effective sentence of life without the possibility of parole plus ten years. The defendant claims thirteen instances of error by the trial court, including admission of his wife's testimony on behalf of the state, denial of his motion to sever his trial from that of the codefendant, and admission of his tape recorded conversations with the codefendant. Because we find no reversible error, the judgment of the trial court is affirmed. The judgment for first degree murder is modified to establish that the felony murder is merged into the conviction for premeditated first degree murder.

The defendant, David Eric Price, 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 imposed a consecutive sentence of ten years for the aggravated robbery and a concurrent sentence of five years for the conspiracy. The effective sentence is, therefore, life without the possibility of parole plus ten years.

In this appeal of right, the defendant raises the following thirteen issues:

1. whether the trial court erred by allowing the defendant's wife to testify for the state;

2. whether the trial court erred by denying the defendant's motion for severance from the trial of his codefendant, Carl Durham;

3. whether the trial court erred by admitting tape recordings made by the codefendant of conversations he had with the defendant;

4. whether the trial court erred by admitting evidence regarding the defendant's tennis shoes;

5. whether the trial court erred by admitting DNA evidence on blood droplets found in the victim's automobile;

6. whether the trial court erred by providing defense counsel a jury list only after voir dire had begun and by disallowing individual voir dire;

7. whether the trial court erred by allowing the state to examine two of its witnesses, Kevin Green and Jeanie Bliek, by leading questions and by allowing the witnesses to refer to their prior statements while testifying;

8. whether the trial court erred by admitting photographs and a videotape of the victim's body;

9. whether the trial court erred by refusing to enter a judgment of acquittal and allowing the jury to consider the charge of conspiracy to commit aggravated robbery;

10. whether the trial court erred by ordering that the sentence for aggravated robbery be served consecutively to the first degree murder sentence;

11. whether the trial court erred by failing to grant the defendant a new trial on the ground that the weight of the evidence was contrary to the jury's verdict of guilty on the defendant's first degree murder charges;

12. whether the trial court erred by submitting both of the defendant's first degree murder charges to the jury; and

13. whether the trial court erred in its instruction on the aggravating circumstances to be considered in sentencing the defendant for first degree murder.

We affirm the judgment of the trial court.

FACTS

At trial, the defendant's wife, Staci Price, testified that on several occasions she had heard the defendant and the codefendant, Carl Durham, discuss robbing the victim, Rene Earl Cabirac, Sr. She recalled having heard one such discussion only a day or two before the victim was killed. 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 the defendant, their infant son, Durham, and Durham'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 Durham had telephoned or returned to the apartment. Shortly after Ms. Price's return from Blockbuster, Durham returned, but soon left to look for the defendant. Later, Durham telephoned to say that he had not found the defendant. At approximately 12:30 a.m., Durham came back to the apartment to pick up Ms. Bliek, who agreed to assist in the search.

According to Ms. Price, the defendant called the apartment shortly after Ms. Bliek left. Upon learning that neither Durham nor Ms. Bliek was at the apartment, the defendant asked Ms. Price for a ride but directed her not to bring their son. When Ms. Price arrived at the meeting area designated by the defendant, the defendant was driving a gold-colored Jaguar that belonged to the victim. The defendant directed her to follow, drove to a residence located behind a church, and parked the Jaguar. The defendant's clothing was covered with blood. He explained that he had killed the victim's dog.

Upon returning to their apartment, the defendant took a shower and Ms. Price placed the bloody clothing in the washing machine. The defendant was dressing when Durham and Ms. Bliek returned to the residence. When Durham asked what had happened, the defendant replied that things had not developed as planned. When Durham learned about the defendant's clothes, he retrieved them from the washing machine and placed them in a plastic garbage bag. Durham also suggested that the victim's car be moved because it was left in his neighborhood. The defendant agreed and the two men left. When they returned, they informed Ms. Price that they had taken the Jaguar to Dalton, Georgia. Durham told her that he had disposed of the defendant's clothes along the way. The defendant assured Durham that he had gotten most of the blood off of the car and had removed any fingerprints.

Ms. Price testified that the defendant then informed Durham that he had gone to the victim's residence and struck him on the head with Durham's tire iron; however, the victim merely put his hand on the back of his head and remained conscious. A struggle ensued. When the defendant demanded to know the location of the Jaguar keys and began to search for the keys, the victim attempted to conceal himself in another room of the house. The defendant was unable to find the keys, kicked open the door where the victim was hiding, and stabbed him to death with a knife. The defendant 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, the defendant and Durham returned to the victim's residence on the following day and stole an array of guns, jewelry, and money, including rolled coins.

Staci Price's testimony was largely corroborated by that of Jeannie Bliek. Ms. Bliek testified that on the evening the victim was killed, Ms. Price drove herself to work, leaving her at the apartment with Durham, the defendant, and the Prices' infant son. She recalled that the defendant and Durham began discussing a robbery of the victim. The defendant proposed to obtain money to pay the rent on the apartment, which was overdue. At approximately 8:00 or 9:00 p.m., the defendant and Durham left the apartment, taking a box of latex gloves with them. According to Ms. Bliek, Durham was to drive the defendant to the victim's residence. The defendant and Durham later told Ms. Bliek that Kevin Green had agreed to accompany them, but he "chickened out." Ms. Bliek remembered that at approximately 10:00 or 10:30 p.m., Staci Price returned to the apartment. Only a few minutes later, Durham arrived to take Ms. Bliek to dinner. Ms. Bliek testified that Durham was scheduled to meet the defendant, who would be driving the victim's car, in the parking lot of Goody's at 1:15 a.m. After they ate dinner, Durham dropped off Ms. Bliek at the apartment. At approximately 2:00 a.m., Durham called the apartment, explained that the defendant had failed to appear at Goody's, and asked her assistance in searching for him. The two drove to the victim's house and saw that the lights were on, the garage door was open, and the victim's dog was running in the front yard. The victim's car was not there.

Unable to find the defendant, Durham and Ms. Bliek drove to a pay telephone, called the apartment, and learned that the defendant was at the apartment. When Durham and Ms. Bliek arrived at the apartment, the defendant was wearing the same clothing he had been wearing earlier in the day. Both his clothing and his shoes were bloody. Ms. Bliek observed scratch marks on the defendant, as well as a knife wound on his left arm and a bruise in the center of his chest. While the defendant took a shower, Ms. Price put his clothing in the washing...