# FILED January 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9707-CR-00293 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, ERIK LEE JACKSON, ) JUDGE ) Appellant. ) (Second-Degree Murder)

FOR THE APPE LLANT: FOR THE APPELLEE: RICHARD M cGEE JOHN KNOX WALKUP 601 Woodland St. Attorney General & Repor ter Nashville, TN 37206 DARYL J. BRAND Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JOHN C. ZIMMERMANN-andHELEN DONNLEY Asst. District Attor

neys General Washington Square, Suite. 500 222 Second Ave., North Nashville, TN 37201-1649
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 The indictment refers to the victim as “Elbert Bryant Perkins.” Th e transcript, however, refers to the victim as “Bryan t Perkins ,” while the victim ’s father is re ferred to a s “Elbert P erkins.”

2 Two of the neighbor s testi fied that

the defendant

was in the maroon car, while one of the other neighbors testified he saw the defendant exit the blue car. 2 

### O P I N I O N

The defendant was charged by indictment with the first -degree premeditated murder of Bryant Perkins. 1 Following a jury trial and sentencin g hearing, he was found guilt y of second-degree murder and sentenced as a Range I stan dard offenderto twenty-one

years imprisonment. He now appeals, arguing

that the trial court erred in failing

to suppress

his statement to police a nd in imprope rly sente ncing him. Finding no

merit to the

defendant’s ar

guments, w

e affirm.

On January 12, 1995, after coming home from school, seventeen-year-old Bryant Perkins and his friend, Robert Wilkerson, wer e walkingdown the street in Perkins’ neighborhood when a maroon car pulled ne xt to Perkins. As the driv er of the maroon car engaged Perkins in conversation, a light blue car c arrying sev

er al passengers pulled along side the maroon car, trapping Perkins between the tw o car s. App arently, one of the passengers in the blue c ar, Marcus

Jackson, the defendant’s brother, believed that Perkinshad stolen his car earli er that day. Somebod yin the back seat of the blue car yelled, “Is that the n ig ger?” Perkins put up hi s hands and said, “Mario, man, you know me,” but the driver of the blue car s aid, “Kill him.” Wilkerson immediat ely ran, but he heard many g unshots behi nd him.

Several people witnessed the shooti ng, inc lu ding two fourteen-year -olds who were sitting on a ho use porch nearby, a neig hbor who was standing at the corner of his house, and a neighbor who was driving down the

street. Each of these witn esses saw the defendant exit one of the cars and hi s brother, Marcus, ex it the o ther 2 and shoot3

Perkins multiple times. Perkins died shortly thereafter of multiple gunsho t wounds.

Twenty-f ive shell casings from .45 cal iber rounds were found in the vici nity of the sho oting. Three bullets w ere removed from Perkins’ b ody. In addition, a hous e near the scene of the shooting, which was occupie d at the time, was hit by at least three bullets, and a Cadillac parked on the street was also struck by several bullets.

After talking with the witnes ses at the scene, po lice off icers we nt to the Jackson brothers’ house, believing Ma rcus J ackson to be a suspect. At the time, the defendant was not home. After talking with detectives, Marcus Jacks on confessed and was i mmedia tely arrested. The detectives’ conversations with Marcus and their investigationof the shootin g led the m to believe the defendant was involved in the shooting.

On January14, two days after the sho oting, the defendant

was stopped on a traffic violation and arr ested when weapons w ere discovered in his

vehicle. The defendant was held for questi oning by the investigati ng homicide detectives,and the defendant told them he was involved i n the shooting. Specificall y, the defendant stated, “Okay. I wasthere. I shot with the rifle. I only shot one time.” The defendant s ought to suppress this statement. Following a two-day suppression hearing, the trial court refused to suppress the defendant ’s stat ement, finding that the defendan t was advised of his rightsbut never asserted them and th at there was nothing i ntimidating about the detectives’ quest ioning.

The defendant first chal lenges his conviction, arguing that the trial court should have suppressed his stat ement. This argument

will not afford the defendant relief because t he evide nce against the defendant was ov erwhelming. Four i ndividuals who4

witnessed the shooting identified the defendant a s one of th e shooters, which itself is sufficientevidence to sustain the defendant’s conviction. Thus, even assuming that the trial court erred in failing to s up press the defendant’s statement, the defendant’s conviction would not be reversed because any error would not have affected the result of the trial. Tenn. R. Crim. P. 52(a).

The defendant also challenges his sentence. He first argues that the trial court erred in failin g to consider his y outh as a mitigating factor under T.C.A. § 40-35- 113(6)(providing

that a sentence may be mitigated on proof that the “def endant, because of youth or old age, lacked subst antial judgment in committing the offense”). With regard to this mitigating factor, the trial court stated: I don’t -- I don’t know w hat considerations went i nto making this a second degree in stead of a first degree unless i t -- unless it was

that bot h defendants are, indeed, young. And, to the extent that being y oung. . . .their-- their young age is a mitigating factor, I make the findingof fact that th at is the cause of the second degr ee murder conviction, and I ’m no t considering it agai n as a mitigating f actor in the sent encing. The defendant argues this reasoning was erroneous and that thus, the mitigating

factor of youth should be a pplied to reduc e his sentence. Even assuming t he tria l court’s reasoning was errone ous, ho wever, the defendant’s arg ument lacks merit. The defendant was a twenty -year-old ad ult at the time of the shooting, an d there is no evidence in the record that would tend to demonstrate an inability to appreciate the nature of his conduct. State v. Ada ms , 864 S.W.2d 31, 33 (Tenn. 1993). Thus, the mitigating factor in § 40-35-113(6) is not warranted in this case.

The defendant also argues that the trial court err oneously considered pending charges against the defendant as a factor to rebut the mitigating factor of T.C.A. § 40-35-113(11), that the crime was committed under “such unusual circumstances that it is unlikely that a s ustained intent to violate the law motivated the criminal c onduct.” The defendant contends that using pending charges to

rebut a miti gating fact

or has the sa me3 The trialcourt found t hat the defen dant was a leader in the of

fense and that

he employed a deadly we apon in th e com miss ion of the o ffense
. See T.C.A. § 40-35-114(2), (9). 5 effect as consideri ng them as an aggravating factor, and he argues the mere fact that chargesare pending, without some evide nce that the defendant engaged in cr iminal conduct, is irrelevant for sentencing purposes.

As a Range I standard offender conv icted of second-degree murder,a Class A felony, t he defe ndant f aced a po ssible se ntence o f fifte en to twen ty-five years. Af ter finding that two enhancing factors, 3 which the defendant does not chal lenge, an d no mitigating factors were applicable to this case, the trial court sentenced the defendant to twenty-one

y ears incarceration. Ev en assuming that the trial court somehow errone ously considered pending charg es without evidence of cr iminal behavior, the defendant would not be entitled to r elief on th is b asis because considering all the circumstances in this ca se, a sentence of twenty-on e years is appropriat e.
The trial court’s judgment is affirmed.

_______________________________ JOHN H. PEAY, Judge CONCUR:

______________________________ GARY R. WADE , Presiding Judge

______________________________ JERRY L. SMITH, Jud ge