        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs April 17, 2013

                 STATE OF TENNESSEE v. BOBBY D. PARKER

             Direct Appeal from the Circuit Court for Rutherford County
                        No. F-66425      David Bragg, Judge


              No. M2012-01325-CCA-R3-CD - Filed September 26, 2013


Following a jury trial in the Circuit Court of Rutherford County, Defendant, Bobby D.
Parker, was convicted of three counts of attempted aggravated robbery and one count of
attempted aggravated burglary. Defendant was sentenced as a career offender for each
conviction, with sentences of 15 years imposed for each attempted aggravated robbery and
12 years for the attempted aggravated burglary. The trial court ordered two of the 15-year
sentences to be served concurrently with each other but ordered them to be served
consecutively to the third attempted aggravated robbery sentence. The attempted aggravated
burglary sentence was ordered to be served consecutively to the other sentences, for an
effective sentence of 42 years. In this appeal, Defendant raises two issues: (1) the trial court
committed reversible error by overruling his objection to a peremptory challenge exercised
by the State, and (2) the trial court imposed an excessive sentence by applying improper
enhancement factors. We affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, Jr. and R OBERT W. W EDEMEYER, JJ., joined.

Gerald L. Melton, District Public Defender; and Russell N. Perkins, Assistant Public
Defender, Murfreesboro, Tennessee, for the appellant, Bobby D. Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; Shawn Puckett, Assistant
District Attorney General; and Allyson S. Abbott, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                         OPINION

       Under the particular circumstances of this appeal, a detailed recitation of the facts
presented at trial is not necessary. However, the criminal acts of defendant in this spree led
from Rutherford County to Williamson County, where Defendant was also charged with
additional crimes related to the Rutherford County charges. Defendant pled guilty to eight
various crimes in Williamson County, leaving to the trial court to determine the length and
manner of service of sentences imposed. Defendant appealed the Williamson County
judgments to this Court. The facts as set forth in this Court’s opinion which affirmed the
judgments of the Williamson County trial court are sufficient to provide all the necessary
background for the case sub judice. This Court stated,

        At the sentencing hearing on March 5, 2012, the State submitted judgments
        of convictions which reflected that on January 27, 2012, the appellant was
        convicted in Rutherford County of three counts of aggravated robbery and
        one count of attempted aggravated burglary and received an effective
        sentence of forty-two years. Also in Rutherford County, on June 20, 2012,
        the appellant was found guilty of violating the probationary sentences he
        was serving for convictions of possession of a Schedule II drug and
        aggravated robbery, and he was ordered to serve his original
        sixteen-year-sentence in confinement. The Rutherford County Circuit Court
        ordered the appellant to serve the forty-two-year sentence consecutively to
        the sixteen-year sentence for a total effective sentence of fifty-eight years.
        In the instant case, the State recommended that the sentences imposed be
        served concurrently with the forty-two-year sentence but consecutively to
        the sixteen-year sentence.

        Rutherford County Sheriff’s Detective Jim Tramel testified at the
        sentencing hearing that in October 2010, he responded to the scene of a
        home invasion in Smyrna. The three victims, Joanna, Tommy, and John
        McClendon, told Detective Tramel that when they came home, the
        perpetrator came down the stairs and pointed a gun at them. The perpetrator
        took money, electronics, a camera, and custom-made golf clubs, one of
        which had a “beaver head cover.” The perpetrator left the residence in the
        victims’ 2005 white Volvo. Police chased the perpetrator but were unable
        to apprehend him.

        The next morning, Detective Tramel was informed that the victims’ car had
        been located behind the Tractor Supply Company in Triune. Police
        processed the vehicle, but no golf clubs were found. Thereafter, Detective

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Tramel contacted the Williamson County Sheriff’s Department and learned
that a 2010 white Ford Explorer was stolen approximately one mile from
the Tractor Supply Company. Detective Tramel believed the two crimes
were linked.

In order to locate the golf clubs, Detective Tramel contacted pawn stores
and local Play It Again Sports stores and asked to be informed if anyone
brought in golf clubs matching the description of the stolen items.
Approximately three days later, the manager of the Play It Again Sports
store at Cool Springs Galleria called Detective Tramel and said that the
appellant was trying to sell the stolen golf clubs. Detective Tramel
contacted the Franklin Police Department to request assistance in
apprehending the appellant.

Detective Tramel said that after the appellant was caught trying to sell the
golf clubs, he compiled a photograph line-up and showed it to one of the
victims, who positively identified the appellant as the perpetrator. Detective
Tramel noted that he recorded an interview with the appellant, he played the
interview for the victims, and the victims identified the appellant’s
distinctive voice from the interview.

Detective Tramel stated he felt that the appellant was “a menace, and I do
feel that with the violent acts that he’s partaken in, it’s just a matter of time
before somebody winds up getting shot and killed and he eliminates any
witnesses that could potentially testify against him.” Detective Tramel
noted that one of the victims shot at the appellant as he fled the scene.

Detective Tramel said that a couple of days prior to the Rutherford County
robbery and automobile theft, Warren Tiller and Allen Stanford each
reported that a firearm had been stolen from them. Both men resided near
the location of the home invasion. The firearms were ultimately found in
the 2010 Ford Explorer. Detective Tramel stated that the appellant had
resided in that area and that he was “preying on his neighbors.”

Franklin Police Officer Todd Stamper testified that at the time of the
offenses, he was the Alpha Shift Patrol Sergeant. In October 2010, he
received a call advising that someone at the Play It Again Sports store in
Cool Springs, who was later identified as the appellant, was trying to sell
unique golf clubs that were possibly related to a home invasion. Officers



                                       -3-
        tried to apprehend the appellant, and he fled through the back of the store.
        The officers gave chase but eventually lost sight of the appellant.

        Officer Stamper and other officers searched for the appellant for
        approximately an hour and a half. During the search, Officer Stamper went
        into a Subway restaurant. The appellant had locked himself in the women’s
        restroom. When officers opened the door, the appellant crawled into the
        ceiling to try to escape, but the ceiling collapsed. When Officer Stamper
        and another officer apprehended the appellant, he initially resisted and then
        became still and unresponsive.

State v. Bobby Duane Parker, No. M2012-00748-CCA-R3-CD, 2013 WL 451891 at *1-2
(filed Feb. 6, 2013).

                                         Analysis

Objection to State’s Peremptory Challenge to Juror

      During jury selection, the following transpired:

        LAW CLERK:                   Batson challenge on the prosecution.

        THE COURT:                   Thank you. Counsel, if you’ll approach.
                                     [Court Reporter], if you’ll come over here to
                                     the side.

                                     (A side bar conference occurred out of the
                                     hearing of the jury, as follows:)

        THE COURT:                   All right. [Defense Counsel]?

        [DEFENSE COUNSEL]:           Your Honor, Ms. Mays, who the State has
                                     challenged in this round, is an African-
                                     American juror, and I think under [Batson],
                                     they have to give a reason other than that. [sic]
                                     From there, they have to explain why they want
                                     to strike her as a juror.

        THE COURT:                   That’s only if you’re saying that the only
                                     reason they’re striking her is because of

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                                   discriminatory    purposes.      Is   that   your
                                   allegation?

        [DEFENSE COUNSEL]:         Your Honor, that - - I did not see anything, and
                                   I hate to accuse the State of anything. But I did
                                   not see anything in my preliminary questioning
                                   of this jury that would cause a problem. If
                                   there is something else, I think they’re required
                                   to [say].

        THE COURT:                 All right. Thank you.

        [PROSECUTOR]:              Number one, the defendant’s not black. So I
                                   don’t know why that would be prejudicial to
                                   him. Number two, we didn’t like she - - she
                                   answered my direct versus circumstantial
                                   evidence, that it seemed like she was really
                                   confused on the law. That’s our reason for
                                   doing it, not because she’s black.

        THE COURT:                 All right. The Court at this time would rule
                                   that the State has given [a] nondiscriminatory
                                   purpose for excusing this juror, and as a result,
                                   I would deny the challenge at this time.

       The prosecutor was referring to a portion of her voir dire questioning, where the
following occurred:

        [PROSECUTOR]:              Does anyone here, do they know the difference
                                   between direct evidence and circumstantial
                                   evidence? Ma’am, I see you nodding your
                                   head back there. Can you tell us what the
                                   difference is?

        MS. MAYS:                  One is positive and circumstance - - one is not
                                   positive, not sure of. But the first one being
                                   positive, that this is a fact.

        [PROSECUTOR]:              Okay. You’re close.



                                           -5-
        The prosecutor continued by providing a hypothetical fact situation which showed the
difference between direct evidence and circumstantial evidence. At the conclusion of giving
this information, the prosecutor asked all members of the prospective panel collectively,
“Does everyone understand that?” The court reporter’s notation in the transcript is that all
the prospective “jurors indicate by nodding heads.”

       Defendant argues that the State exercised a peremptory challenge of the juror in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the United States Supreme
Court held “the Equal Protection Clause [of the United States Constitution] forbids the
prosecutor to challenge jurors solely on account of their race.” Id. at 89. Subsequently, the
Supreme Court held that the State may make a Batson objection of discriminatory peremptory
challenges by a defendant. Georgia v. McCollum, 505 U.S. 42 (1992). Directly contrary to
the prosecutor’s initial response to the Batson challenge in this case, the prospective juror
and the defendant need not be of the same race in order for there to be a valid equal
protection claim. Powers v. Ohio, 499 U.S. 400, 415-16 (1991).

        In the case sub judice, Defendant is Caucasian and the prospective juror is African-
American, as was the situation in State v. Hugueley, 185 S.W.3d 356 (Tenn. 2006). In
Hugueley, our supreme court addressed five Batson challenges by the Caucasian defendant
as to peremptory challenges of African-American prospective jurors by the State. The court
in Hugueley noted that under Batson, there is a three-pronged analysis when a Batson
challenge is made. The objecting party must first establish a prima facie case of purposeful
discrimination. If that is done, the other party has the burden to provide a neutral explanation
for the peremptory challenge. The race neutral explanation does not have to be persuasive
or plausible. If a race neutral reason is given, then the trial court must determine from all the
circumstances whether the objecting party has established purposeful discrimination.
Hugueley, at 368. If the trial court does not explicitly state that the objecting party has
satisfied the first prong of establishing a prima facie case of purposeful discrimination, yet
goes on to indicate to the other party (the State in the case sub judice) to submit its reason for
exercising its peremptory challenge, an appellate court may assume that the objecting party
made out a prima facie case of impermissible discrimination. Hagueley, at 371. As noted
above, the trial court in Defendant’s case did not state that Defendant made out a prima facia
case of discrimination by the State, but immediately asked the State to respond to the Batson
objection. The prosecutor gave her explanation without requesting the trial court to make
a finding on the record as to whether Defendant met his burden on the first Batson prong.
Accordingly, we must assume that the trial court determined that Defendant made out a prima
facie case of impermissible discrimination, and the State accepted this conclusion without
objection.




                                               -6-
        As to the remaining Batson determinations, the trial court explicitly found that the
State’s reason for exercising the challenged peremptory challenge was race neutral.
However, despite our supreme court’s guidance in Hugueley, the trial court in this case did
not “carefully articulate specific reasons,” Id. at 369 (quoting Woodson v. Porter Brown
Limestone Co., 916 S.W.2d 896, 906 (Tenn. 1996), as to whether “the totality of the
circumstances support a finding of purposeful discrimination.” Id. Our supreme court has
held that even if a plausible race neutral explanation has been provided, “[t]he trial court may
not simply accept a proffered race-neutral reason at face value but must examine the
prosecutor’s challenges in context to ensure that the reason is not merely pretexual.”
Hugueley, at 368 (citing Miller-El v. Dretke, 545 U.S. 231 (2005)). The same issue of a trial
court’s failure to explicitly express on the record its reasoning as to the Batson challenges
existed in Hugueley. In that case, however, our supreme court noted that “the sole indication
of purposeful impermissible discrimination by the State in this case is the fact that each of
the peremptory challenges used by the State was employed against an African-American
venire person.” Hugueley, at 373. The court in Hugueley ultimately determined, despite the
trial court’s “barely adequate” findings, Id. at 371, that,

        Thus, we are confident that the trial court accurately assessed the
        prosecutor’s credibility with regard to his explanations and properly
        determined that, under all the circumstances, Defendant had not established
        purposeful discrimination by the State in its exercise of its peremptory
        challenges.

Hugueley, at 375.

        In the case sub judice the only indication of purposeful discrimination is that one
African-American prospective juror was peremptorily challenged by the State. When pressed
by the trial court to state his factual basis of discriminatory purpose by the State, Defendant’s
counsel could only respond that the challenged prospective juror was African-American and
that defense counsel “did not see anything in my preliminary questioning of this jury that
would cause a problem.” Furthermore, defense counsel never requested the trial court to
make explicit findings under the third prong of Batson. We conclude on the merits of the
issue that ultimately the trial court accredited the race neutral reasoning given by the
prosecutor. Defendant is not entitled to relief on this issue.

Sentencing

       As to sentencing, Defendant argues that the trial court erroneously used three
inapplicable sentencing enhancement factors found in Tennessee Code Annotated section 40-
35-114(3), (9), and (10), and as result the trial court imposed an “unlawful sentence.”

                                               -7-
Defendant does not challenge the imposition of partial consecutive sentencing. More
importantly as to the issue he does raise, Defendant does not challenge the trial court’s
classification of Defendant as a “career offender” pursuant to Tennessee Code Annotated
section 40-35-108. In this case, Defendant was convicted of three Class C felony offenses
of attempted aggravated robbery and one class D felony offense of attempted aggravated
burglary. As pertinent to Defendant’s status, the following statutory provisions are
applicable:

        40-35-108. Career offender. – (a) A career offender is a defendant who
        has received:

               (1)    Any combination of six (6) or more Class A, B or C
                      prior felony convictions, and the Defendant’s
                      conviction offense is a Class A, B or C felony;

               ***
               (3)    At least six (6) prior felony convictions of any
                      classification if the Defendant’s conviction offense is
                      a Class D or E felony.

Tenn. Code Ann. § 40-35-108(a)(1) and (3).

        The record reflects that Defendant had many prior convictions. Among the numerous
prior felony convictions are one conviction for the Class B felony of aggravated robbery, and
thirteen prior convictions for the Class C felony offense of aggravated burglary. Clearly,
Defendant was properly classified as a career offender for all sentences in the case sub
judice. It makes no difference as to the length of the sentence for a career offender whether
any enhancement factors are erroneously applied because only one sentence is authorized for
a career offender: the maximum sentence within the applicable Range III. Tenn. Code Ann.
§ 40-35-108(c).

        The only appropriate sentence for a career offender who is convicted of a Class C
felony is 15 years. The only appropriate sentence for a career offender who is convicted of
a Class D felony is 12 years. These sentences were imposed on Defendant. Defendant is
entitled to no relief on this issue.

       In conclusion, the judgments of the trial court are affirmed.

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE

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