State of Tennessee v. Casey Colbert ( 2018 )

10/15/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 10, 2018
STATE OF TENNESSEE v. CASEY COLBERT
Appeal from the Criminal Court for Shelby County
No. 11-05332 James M. Lammey, Judge
___________________________________
No. W2017-01998-CCA-R3-CD
___________________________________
The Defendant-Appellant, Casey Colbert, entered guilty pleas to two counts of bribery of
a witness and two counts of coercion of a witness, see T.C.A. §39-16-107(a)(1) and §39-
16-507 (2010). After a sentencing hearing, the trial court merged the two convictions for
bribery and the two convictions for coercion into single convictions of bribery and
coercion. The trial court then imposed a six-year sentence for bribery and a four-year
sentence for coercion, to be served consecutively, for an effective sentence of ten years in
the Tennessee Department of Correction. The sole issue presented for our review is
whether the trial court erred in ordering the Defendant to serve his sentences
consecutively. Upon our review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Remanded for Entry of Corrected Judgments
CAMILLE R. MCMULLEN J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.
Claiborne Ferguson, Memphis, Tennessee, for the Defendant-Appellant, Casey Colbert.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Ryan Thompson, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background. In May 2009, the Defendant shot and killed twenty-two-
year-old Ben Walker, the victim, during an attempted robbery. Following the
Defendant’s arrest for the murder, the Defendant repeatedly called and sent numerous
letters to his then-girlfriend, Tiffany Benson, to whom he had confessed his involvement,
in an attempt to coerce her not to testify against him. The Defendant was subsequently
convicted by a jury of first degree felony murder; attempted aggravated robbery;
employing a firearm during the commission of a dangerous felony; two counts of bribing
a witness; and two counts of coercing a witness. State v. Casey Colbert, No. W2012-
00099-CCA-MR3-CD, 2013 WL 3128698, at *17 (Tenn. Crim. App. June 18, 2013).
The trial court sentenced the Defendant to life imprisonment for the murder conviction.
After a hearing, the trial court merged the two convictions for coercing a witness into a
single conviction and sentenced the Defendant to six years for the attempted aggravated
robbery conviction; six years for the firearm conviction; six years for each of the bribery
convictions; and four years for the coercion conviction. The trial court ordered partial
consecutive service for an effective sentence of life plus twenty-two years, all to be
served in the Tennessee Department of Correction. Id. The Defendant appealed his
convictions and sentences arguing, among other things, that the trial court erred in
consolidating the offenses against the witness with the other offenses. Upon review, this
court concluded the trial court erred in consolidating the bribing and coercion of witness
indictments with the first degree murder and attempted aggravated robbery indictments.
In regard to the Defendant’s convictions of first degree murder and attempted aggravated
robbery, we concluded that the trial court’s error was harmless, and affirmed those
convictions and sentences. However, we concluded that the error was not harmless as to
the convictions of bribery and coercion of a witness and reversed and remanded. We also
reversed and vacated the Defendant’s conviction of employing a firearm during the
commission of a dangerous felony. Id. at *1.
Upon remand, the Defendant entered guilty pleas to two counts of bribing a
witness and two counts of coercing a witness on October 3, 2014. The guilty plea
transcript is not included in the record on appeal.1 Apparently, the State previously filed
a motion seeking consecutive sentencing, which is also not in the record. The Defendant
filed a motion, relying upon State v. Eddie L. Howard, No. 03C01-9604-CC-00167, 1999
WL 135055 (Tenn. Crim. App. March 12, 1999), arguing against consecutive sentencing
because he was not a professional criminal who has knowingly devoted his life to
criminal acts as a major source of livelihood and that he was not a dangerous offender. In
support, the Defendant asserted that his prior record was not “long enough” to qualify as
a “career” criminal and that it consisted of minor offenses committed over a period of one
year.
At the September 28, 2017 sentencing hearing, Beverly Walker, the victim’s
mother, read a letter, admitted into evidence, explaining how the Defendant’s action in
killing her only son had affected her life. She said the Defendant “should have been
1
The record does not reveal the reason for the nearly three-year delay between entry of the
Defendant’s guilty plea and the sentencing hearing. We presume it may have been attributable to the
withdrawal of at least two different attorneys during this time frame.
-2-
charged with two murders because [he] took [her] son[’s] life, and [he] completely ruined
[hers].” She recognized that the hearing was for charges related to the murder of her son
and expected the court to be lenient on the Defendant because he had entered a guilty
plea. She nevertheless requested the maximum sentence to be imposed in the bribery and
coercion cases. The Defendant spoke at the hearing and apologized to everyone,
especially his girlfriend, Ms. Benson. He said nothing could justify his actions, which
were “clearly wrong.” He apologized to Ms. Walker as well but denied killing her son.
At the time of his arrest, the Defendant was twenty-one years old. His presentence
report, detailing his criminal history, was admitted into evidence without objection. The
report showed that between the ages of eighteen and twenty-one, the Defendant was
charged with various offenses including aggravated burglary, attempted aggravated
burglary, vandalism, theft, criminal trespass, misdemeanor burglary, and possession of
burglary tools. His last employment prior to his incarceration was “Eight Til Late
Appliance And Maintenance” for his father “off and on” between the ages of sixteen and
twenty-one. The report further showed employment at various fast food restaurants and a
grocery store. None of the reported employment could be verified or was not attempted
to be verified due to the length of time the Defendant had been employed.
The parties agreed that the Defendant was a Range I, standard offender and argued
their respective positions concerning consecutive sentencing. At the conclusion of the
hearing, the trial court agreed with the State, and determined that the Defendant was a
professional criminal, had an extensive record of criminal activity, and was a dangerous
offender under subsections (1), (2), and (4) of Tennessee Code Annotated section 40-35-
115(b). The trial court merged the two bribery convictions into a single conviction of
bribery and imposed a sentence of six years. It then merged the two coercion convictions
into a single conviction and imposed a sentence of four years, to be served consecutively,
for an effective sentence of ten years. It further ordered the ten-year sentence to be
served consecutively to the previously imposed sentence of life plus six-years for the first
degree felony murder and attempted aggravated robbery. The Defendant filed a timely
notice of appeal, and now we review.
ANALYSIS
On appeal, the Defendant argues that the trial court abused its discretion in
ordering him to serve his sentences for bribery and coercion consecutively. The State
responds, and we agree, that the trial court properly imposed consecutive sentencing as
supported by the record.
As an initial matter, although the Defendant failed to include in the record on
appeal the transcript of the guilty plea hearing for his present convictions as well as the
-3-
State’s motion for consecutive sentencing, we conclude that the record is sufficient for
our review of the issue presented. See State v. Caudle, 388 S.W.3d 273, 277 (Tenn.
2012). Where a defendant is convicted of one or more offenses, the trial court has
discretion to decide whether the sentences shall be served concurrently or consecutively.
T.C.A. § 40-35-115(a) (2006). The Tennessee Supreme Court has held, “[T]he abuse of
discretion standard, accompanied by a presumption of reasonableness, applies to
consecutive sentencing determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn.
2013). A trial court may order multiple offenses to be served consecutively if it finds by
a preponderance of the evidence that a defendant fits into at least one of seven categories
enumerated in code section 40-35-115(b). Those categories include:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by
a competent psychiatrist who concludes as a result of an investigation prior
to sentencing that the defendant’s criminal conduct has been characterized
by a pattern of repetitive or compulsive behavior with heedless indifference
to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life and no hesitation about committing a crime in
which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
victim or victims, the time span of defendant’s undetected sexual activity,
the nature and scope of the sexual acts and the extent of the residual,
physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b).
-4-
An order of consecutive sentencing must be “justly deserved in relation to the
seriousness of the offense.” T.C.A. § 40-35-102(1); see State v. Imfeld, 70 S.W.3d 698,
708 (Tenn. 2002). In addition, the length of a consecutive sentence must be “no greater
than that deserved for the offense committed.” T.C.A. § 40-35-103(2); see Imfeld, 70
S.W.3d at 708. An appellate court must give “deference to the trial court’s exercise of its
discretionary authority to impose consecutive sentences if it has provided reasons on the
record establishing at least one of the seven grounds listed in Tennessee Code Annotated
section 40-35-115(b).” Pollard, 432 S.W.3d at 861. To adequately provide reasons on
the record to support the imposition of consecutive sentences based on the dangerous
offender classification, trial courts must also conclude that the evidence has established
that the aggregate sentence is (1) reasonably related to the severity of the offenses; and
(2) necessary to protect the public from further criminal acts. Id. at 863 (citing State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)).
Here, the record shows that the trial court imposed consecutive sentencing after
determining that the Defendant was a professional criminal, that the Defendant had an
extensive record of criminal activity for someone his age, and that the Defendant was a
dangerous offender. T.C.A. §§ 40-35-115(b)(1), (2), and (4). The relevant portions of its
oral ruling are as follows:
So, there’s two things. You could find that he’s a professional criminal
who has knowingly devoted his life to criminal acts as a major source of
livelihood. . . . I mean, you could also say – I mean, he was twenty-one
when he committed this murder – robbery – he was only eighteen three
years before and had already built up a substantial record. And it reads,
“He’s an offender whose record of criminal activity is extensive.” You
know, I guess if you’re thirty-nine and you’ve been arrested every month,
you could say, well, yeah; but to be twenty-one and you’ve been arrested as
many times as he was and also get convicted of a felony and then a murder
and an attempted robbery, . . . my goodness, he’s already had a pattern. A
witness testified he wasn’t working at the time of the event. So, he wasn’t
working; he’s out there robbing; and the particular thing has nothing to do
with this particular crime; it has to do with other crimes. This particular
crime was used to cover up some stuff, but it doesn’t take away the fact that
his record of criminal activity is extensive.
....
I mean, so for the facts of this case because you could base it on – it
says, “The defendant is a dangerous offender.” Well, anyone who commits
a murder or robbery, I would say, is a dangerous offender. And he also has
-5-
another felony – another several arrests. He’s been on probation for
vandalism. That person is dangerous. “. . . whose behavior indicates little
or no regard for human life, no hesitation about committing crime in which
the risk to human life is high.”
....
“The defendant is a dangerous offender whose behavior” – okay –
“indicates little or no regard for human life.” That’s clear. “And no
hesitation about committing a crime in which the risk to human life is
high.” So, I don’t know if they’re talking about this crime or the crime of
murder, and these two factors have to apply – “The circumstances
surrounding the commission of the offense are aggravated and the
aggregate length of the sentences reasonably relate to the offense for which
the defendant stands convicted.”
Well, what if he had been successful in bribing and coercing this
witness into changing their story?
....
[Looking] at it from Ms. Benson’s standpoint, the fear involved in
knowing what could happen – knowing what someone is capable of – the
fear that that would instill[.]
....
Well, I mean, you can base this dangerous offender on the facts of
the present case. The facts of the present case are so intertwined with the
murder. I mean, he was in jail on a murder, and he was trying to get
someone – I forgot the particulars now it’s been so long; but they found
him guilty of both bribery – bribery and coercion. I mean, these are such
extraordinary circumstances, you know, that – the last part says,
“Reasonably relates to the offense for which the defendant stands
convicted.”
[I]f you think about justice – if there’s any justice, whatsoever – if
you think about it from the standpoint of Ms. Benson who was apparently
threatened and bribed – or coerced – what went through her mind; then you
have this poor kid that was murdered for almost nothing – to run them
concurrent would almost be an insult to one another. I suppose if the
-6-
victim of the underlying charge to which he was trying to get out of trouble
on and the conviction for the bribery were the same person, but here we
have totally separate people; and I really believe that running these all
consecutive would be reasonably related to the offense for which the
defendant stands convicted. There’s no other way around it. It’s extremely
troubling. These are extraordinary things. I mean, it’s not every day you
have someone in jail on a murder case who tries to coerce[.]
....
So, I think he is - - I think at the time of this offense, he was a
professional criminal. And his record of criminal activity is extensive for
someone his age. He was twenty-one and had all these arrests, and it’s
absolutely sad. . . . So, I’m going to order the six and the four to be
consecutive and consecutive to the murder case – a total of ten years
consecutive.
Although the Defendant argues that the trial court improperly imposed consecutive
sentencing based on his status as a professional criminal that had knowingly devoted his
life to criminal acts as a major source of his livelihood, we conclude that the record
adequately supports consecutive sentencing based on the Defendant’s classification as a
dangerous offender and his extensive criminal history. Here, the Defendant argues that
the “the record is deficient of adequate consideration of the Wilkerson factors[.]” The
Defendant specifically contends that the trial court placed undue emphasis on the
Defendant’s convictions of first degree murder and attempted aggravated robbery “almost
to the exclusion of the bribery and coercion” convictions actually before the court. Upon
our review, we agree with the determination of the trial court, and conclude that the
Defendant’s prior convictions were the underlying cause for the Defendant’s attempt to
bribe and coerce the witness in the instant case, thereby making the cases “intertwined.”
Accordingly, the record sufficiently supports consecutive sentencing based on the
Defendant’s classification as a dangerous offender.
In considering the Defendant’s classification as a dangerous offender the trial
court determined that consecutive sentencing reasonably related to the severity of the
Defendant’s offenses and served to protect the public from further criminal conduct by
the Defendant. Wilkerson, 905 S.W.2d at 938. Although the trial court did not recount
all of the facts from the trial, it presided over the trial and recalled the overall tenor of
Benson’s testimony. The proof at trial established that on the night of the murder, the
Defendant came by Benson’s home after calling and telling her he wanted to speak to her.
Casey Colbert, 2013 WL 3128698, at *11. Eventually, the Defendant confessed the
crimes to Benson and recalled details from the event. Id. Thereafter, Benson spoke with
-7-
police regarding the incident and identified the Defendant from a photographic array. Id.
at *12. After the Defendant was arrested, Benson testified at his preliminary hearing on
June 17, 2009. Id. Following the preliminary hearing, the Defendant called Benson and
asked why she testified against him. Id. According to Benson, the Defendant called her
numerous times before trial. Id. The State played a previously admitted recording of a
phone call placed by the Defendant from jail on June 17, 2009. Id. Benson identified the
voices on the call as hers and the Defendant’s. Id.
Benson testified that the Defendant’s calls persisted. Id. She asked him to stop
calling, but he refused and proceeded to call her cell phone, her work phone, her sister’s
phone, her mother’s phone, and “three-way.” She changed her phone number four or five
times. Id. On March 26, 2011, Benson received two “three-way” phone calls from the
Defendant. The calls were placed through a man named Walter, whom the Defendant
claimed was his uncle. Id. Benson said she last spoke with the Defendant by phone in
March 2011 and she recalled that phone conversation because the Defendant told her “not
to show up for trial,” and “[t]o hide and not to sign a subpoena and not to open a door for
the police when they come.” Id. The State played these phone calls, along with several
others for the jury. Id. at *12-13. On each call, Benson identified the Defendant’s voice.
Id. Benson said at the time she received the calls, she was living alone and became
scared because the Defendant told her that he would “have somebody to come and get
[her] and hide [her].” As a result, Benson moved in May 2011. Id. at *12. Benson
testified that the Defendant would offer her money and to take care of her if she did not
go to court. He had also threatened to take custody of their daughter. Id. at *13.
Benson testified that the Defendant had written her over one hundred letters, even
though she had asked him to stop. Id. at *12. She identified several of the letters and
recalled their substance. Id. at *13. In one letter, the Defendant suggested that she say
she had been coerced by the police. Id. In another, the Defendant explained that his
uncle was sick and dying and that upon his death, the Defendant was going to receive
$20,000, and that he would give Benson $10,000 if he got out of jail. Id. He then told
her to refuse to testify. Id. In other letters, Benson recalled the Defendant asking her to
write what he told her to write in her handwriting, to not show up to court, and to dodge
the subpoena. Id. He gave her the name and number of the “investigator” and told her to
call the investigator and change her statement. Id. Each of the letters was admitted into
evidence. Id.
Given this testimony, the record fully supports the trial court’s finding that the
Defendant was a dangerous offender whose actions warranted consecutive sentencing in
order to protect the public from further criminal activity of the Defendant. Additionally,
the imposed consecutive sentencing reasonably related to the severity of the Defendant’s
-8-
convictions for bribery and coercion. The trial court did not err in imposing consecutive
sentencing on this basis.
We additionally conclude that the trial court properly imposed consecutive
sentencing based upon the Defendant’s extensive criminal history. This factor alone
supports consecutive sentencing. It also “has been interpreted to include not only the
convictions presently before the sentencing court but also prior offenses.” State v.
Palmer, 10 S.W.3d 638, 647-49 (Tenn. Crim. App. 1999). As noted above, the
Defendant had an extensive juvenile and adult criminal history. His adult criminal
history began in 2008, and consisted of multiple thefts, vandalism, aggravated criminal
trespass, and attempted aggravated burglary. The Defendant was arrested sometime in
2009, and in 2011, the Defendant was convicted of two additional felony offenses of first
degree murder and attempted aggravated robbery. In the present case, the Defendant was
also convicted of felony bribing and coercion of a witness. In total, the Defendant was
before the trial court with a criminal history consisting of five felonies and numerous
misdemeanor convictions. Accordingly, consecutive sentencing was also properly
imposed based on the Defendant’s extensive criminal history. See, e.g., State v. Garrick
Graham, No. E2014-01267-CCA-R3-CD, 2016 WL 892013, at *21 (Tenn. Crim. App.
Mar. 8, 2016).
CONCLUSION
Because any one of the above grounds supports the trial court’s imposition of
consecutive sentencing, we find no abuse of discretion. See State v. Adler, 71 S.W.3d
299, 307 (Tenn. Crim. App. 2001) (stating that the sentencing statute requires that only
one factor be proven to support consecutive sentences). The Defendant is not entitled to
relief, and the judgments of the trial court are affirmed. However, in our review of the
bribery judgments in this case, we detect certain clerical errors necessitating a remand for
entry of corrected judgments. The section listing the indicted and conviction offense
erroneously shows Tenn. Code Ann. section “39-16-607,” and does not correspond to the
offense of bribery. Accordingly, we remand for entry of corrected judgments in this case.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
-9-