State v. Cedric Dickerson ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JANUARY 1999 SESSION February 17, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9802-CR-00051
Appellee, )
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT,
CEDRIC DICKERSON, ) JUDGE
)
Appellant. ) (Felony Murder,
) Aggravated Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON, JR. PAUL G. SUMMERS
Shelby County Public Defender Attorney General and Reporter
TONY N. BRAYTON DOUGLAS D. HIMES
(Appeal Only) Assistant Attorney General
Assistant Public Defender Cordell Hull Building, 2nd Floor
201 Poplar, Suite 201 425 Fifth Avenue North
Memphis, TN 38103-1947 Nashville, TN 37243-0493
WILLIAM C. MOORE, JR. WILLIAM L. GIBBONS
(Trial Only) District Attorney General
Assistant Public Defender
201 Poplar, Suite 201 LORRAINE CRAIG
Memphis, TN 38103-1947 Assistant District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Cedric Dickerson, appeals as of right his convictions by a
Shelby County jury of felony murder and aggravated robbery. The defendant
waived jury sentencing and received a sentence of life without the possibility of
parole for felony murder, concurrent with an eleven (11) year sentence for
aggravated robbery. On appeal, he questions (1) the sufficiency of the evidence
used to convict him, and (2) the aggravating circumstances used to impose a
sentence of life without the possibility of parole. Finding no error below, we
AFFIRM the judgment of the trial court.
FACTS
The victim, Samuel Bumpus, was killed by three (3) shotgun blasts as he
lay in bed in the early morning hours of February 1, 1996. Jermaine Harris
discovered the victim at approximately 6:15 a.m., when he entered the apartment
to borrow the victim’s car. Harris testified that the door was ajar when he arrived.
When he subsequently found the victim on the bedroom floor under a mattress,
he called the police.
Harris was in the victim’s apartment twice the previous evening, once to
borrow the victim’s car and again to return the keys. Harris saw a twelve (12)
gauge shotgun in the victim’s apartment the previous evening, but did not see
one when he returned that morning.
On the evening prior to being killed, the victim allowed the defendant, also
known as “Scarface,” and his friend, Derrick Starks, to play video games in his
apartment. Sheila Brown testified she observed the defendant and Starks in the
victim’s apartment that night. Brown made several visits to the apartment that
night to purchase crack cocaine. Brown initially asked the defendant for crack,
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but he stated that he had none. She saw the defendant holding a shotgun and
heard the victim instruct him to put it down several times. After his requests
were ignored, the victim took the shotgun from the defendant and placed it under
his bed. During a later visit that night, Brown observed the victim discover the
shotgun had been moved and exclaim, “[b]ring my gun, Scarface, damn.” The
victim then fell asleep without retrieving the shotgun.
Brown returned to the victim’s apartment fifteen minutes later with a
friend. She discovered the open door and could see that the victim’s bed was
disturbed. Brown then left the apartment and shortly thereafter saw the police
approaching the apartment with Harris. Later that morning, the defendant sold
crack to Brown that was in a package similar to that the victim had sold her the
previous night.
Aaron Newman lived in the same apartment complex as the victim.
Newman allowed the defendant’s brother-in-law, William Green, and his family to
sleep in his apartment. Around 6:00 a.m. on February 1, 1996, Newman let the
defendant and Starks into his apartment. The defendant told Newman that he
had killed the victim and robbed him of some cash, a pager, some keys, and
crack cocaine. The defendant told Newman that he shot the victim three times
“[t]o see how it feel to kill a motherfucker.”
Newman told the defendant to cut up the remaining shotgun shells and
flush them down the toilet. Starks placed the shotgun under Newman’s
mattress. The defendant placed the stolen keys and pager in one of Newman’s
socks and threw it on the roof. The police recovered the sock on the roof several
days later, and the victim’s mother identified the contents as belonging to her
son.
Several days later, Newman instructed the defendant to remove the
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shotgun from his apartment. The defendant and his cousin, David Mitchell,
removed the shotgun from Newman’s apartment in a Christmas tree box.
Mitchell took the weapon to his girlfriend’s house where it was later recovered by
the police.
William Green, the defendant’s brother-in-law, testified that the shotgun
recovered from Mitchell’s girlfriend’s house was his. Green stated that he loaned
the shotgun to the victim’s roommate, Antonio Hill. Contrary to the testimony of
Newman, Green denied ever hearing the defendant admit killing the victim.
The defendant gave the police a five (5) page statement on February 7,
1996. In the statement and at trial, the defendant denied killing the victim. He
admitted playing video games there, but stated that he and Starks left around
5:00 a.m. Defendant admitted going to Newman’s apartment, but denied telling
Newman he killed the victim. The defendant denied taking the victim’s keys and
pager or removing guns from Newman’s house. Further, the defendant stated
that the crack he sold Brown after the defendant’s murder was his, not the
victim’s.
Based upon this evidence, the jury convicted the defendant of first degree
murder in perpetration of robbery and aggravated robbery.
SUFFICIENCY OF THE EVIDENCE
The defendant asserts that the evidence was insufficient to support the
jury’s guilty verdicts. Specifically, he contends that the evidence only proves that
he had the same opportunity to kill and rob the victim as at least two others,
Aaron Newman and Sheila Brown. Therefore, he claims, a rational jury could not
have found him guilty of the offenses beyond a reasonable doubt.
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Where sufficiency of the evidence is challenged, the relevant question for
an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The
weight and credibility of the witnesses' testimony are matters entrusted
exclusively to the jury as the triers of fact. State v. Brewer, 932 S.W.2d 1, 19
(Tenn. Crim. App. 1996); State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
The jury heard testimony from all relevant witnesses in this case. They
chose to believe the testimony of Harris, Brown, Newman, and Mitchell over that
of the defendant. The testimony of each state witness corroborated the
testimony of the other state witnesses. The defendant’s testimony was
corroborated by his brother-in-law. The jury’s decision to reject the defense
testimony was within its discretion.
This issue is without merit.
SENTENCING
The defendant contends that the trial court relied upon inappropriate
aggravating circumstances in arriving at sentence of life imprisonment without
the possibility of parole. The defendant asserts that the evidence is insufficient
to support circumstance (5), that the murder was “especially heinous, atrocious,
or cruel in that it involved torture or serious physical abuse beyond that
necessary to produce death.” He also asserts that circumstance (7), that the
murder was committed during the commission of a robbery, may not be used to
enhance a felony murder conviction.
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A.
The trial court found beyond a reasonable doubt that the murder was
especially heinous and atrocious in that it involved serious physical abuse
beyond that necessary to produce death. See Tenn. Code Ann. § 39-13-
204(i)(5).
The proof at trial revealed that the victim was shot three (3) times with a
shotgun. He was shot in the chest, the forehead, and in the mouth. The chest
wound was inflicted from the greatest distance, with the forehead and mouth
wounds being inflicted at close range. Each shot would have been fatal
according to the testimony of the pathologist, the forehead shot instantly so. The
trial court, in applying this aggravating circumstance, stated “. . . this was
monstrous to take this person who was already dead or was dying-- was dying at
the time-- heart was most likely still beating-- and just to put a shotgun in his
mouth and pull the trigger was so monstrous.” The trial court also noted that
each of the wounds would have been fatal.
The trial court found that the victim was shot first in the chest from a
distance, this shot paralyzing him. The victim was then shot at closer range in
the head and then shot again by the defendant by placing the shotgun in the
victim’s mouth. Under the standard set forth in Jackson v. Virginia, supra, this is
certainly a reasonable inference from the evidence introduced at trial. See State
v. Williams, 690 S.W.2d 517, 530 (Tenn. 1985)(applying Jackson v. Virginia
standard of review in determining sufficiency of the evidence to support
application of aggravating circumstance).
In State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996), the Tennessee
Supreme Court stated:
The word “serious” alludes to a matter of degree.
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The abuse must be physical, as opposed to mental,
and it must be “beyond that” or more than what is
“necessary to produce death.” “Abuse” is defined as
an act that is “excessive” or which makes “improper
use of a thing,” or which uses a thing “in a manner
contrary to the natural or legal rules for its use.”
See also State v. Nesbit, 978 S.W.2d 872, 887 (Tenn. 1998).
The trial court found that the blast from the shotgun placed inside the
victim’s mouth constituted “serious physical abuse beyond that necessary to
produce death.” Under the Odom standard, we agree this abhorrent act was of a
sufficient degree to be “serious,” was indeed physical as opposed to mental, was
clearly beyond that necessary to produce death in view of the other wounds, and
was, without question, excessive. We further agree that defendant’s actions
were heinous and atrocious.1
The defendant argues that post-death injuries may not be considered in
determining whether there was “serious physical abuse beyond that necessary to
produce death.” He argues that the 1995 amendment to Tenn. Code Ann. § 39-
13-204, which added the aggravating circumstance of mutilation of the body after
death, evidences the legislative intent that the “serious physical abuse”
circumstance is limited to pre-death abuse. See Tenn. Code Ann. § 39-13-
204(i)(13). Odom declined to limit “serious physical abuse” to abuse inflicted
before death. 928 S.W.2d at 25, n. 5. Although Odom predated the mutilation
aggravating circumstance, we find no legislative intent to restrict “serious
physical abuse” to pre-death injuries.
The evidence was sufficient to support the trial court’s finding that the
1
We also note that the sequence of shots would not necessarily be
determinative of the application of this aggravating circumstance. Regardless of
the sequence of the shots, the close range shotgun blast to the head as well as the
in-the-mouth shotgun blast could constitute “serious physical abuse beyond that
necessary to produce death.” See generally State v. Nesbit, 978 S.W.2d 872, 887
(Tenn. 1998).
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murder was heinous, atrocious, and involved serious physical abuse beyond that
necessary to produce death.
B.
The defendant also challenges the use of the felony murder aggravating
circumstance, alleging its use is a duplication of an essential element of the
underlying offense. Felony murder may not be used as an aggravating
circumstance in a death penalty case where the defendant is convicted of felony
murder. See State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992).
However, the Tennessee Supreme Court in State v. Butler, ___S.W.2d___,___
(Tenn. 1998), held “the felony murder aggravator (i)(7) can be used to enhance
a sentence to life without the possibility of parole when the defendant is
convicted of felony murder.”2
This issue, therefore, is without merit.
CONCLUSION
For the reasons set forth above, the judgment of the trial court is
AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
2
Although unnecessary for the disposition of this issue, we note that the
felony murder aggravating circumstance was amended in 1995 to require a
“knowing” murder. 1995 Public Acts, Chapter 377. The crime of felony murder
does not require a “knowing” killing. See Tenn. Code Ann. § 39-13-202(a)(2) and
(b)(Supp. 1995).
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CONCUR:
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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