### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

ugust 7, 2001 STATE OF TEN

NESSEE v. LARRY DEAN DICKERSON Direct Appeal from the Criminal Court for Crockett County

No. 3066 Mark L. Agee, Judge

No. W2000-02201-CCA-R3-CD - Filed September 10, 2001

The defendant appeals his premeditated first degree murder conviction for which he rece i ved a li fe sentence, arguing: (1) the e vidence was not su

fficient to

convict him of first degree murder; (2) he should have been grant

ed a mistrial due to

the prosecutor’ s improper stateme n ts during closing arguments; and (3) he was en titled to a special jury instruction regarding diminished capacity. After reviewing the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined. Garry Brown, Milan, Tennessee (at trial), and Clifford K. McGown, Jr., Wave rly, Tennes see (on appeal), for the appellant, Larry Dean Dickerson. Paul G. Summers, Attorney General an d Repor ter; Kim R. Helper , Assistant Attorne

y General; Clayburn L. Peeples, Distri ct Attorney Gen eral; Edward L. ( Larry) Hardiste

r and Harold E. (H

al) Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION The defendant and

the victim were married for 27 years and worked in the same factory. In August 1997, the victim

moved out of

their home and eventually filed for divorce. Witnesses familiar withthe defendant testified the defendant’s behavior changed dramatically after the sepa ration. The defendant stalked the victim from the time of their separation until the victim’s death. He interfered withher work by frequenting her work area. When he was barred from her work area, the defendant began hiding in the ventilation system of the plant where he could watch her through a vent. Outside of work, the defend

ant repeatedly

followed the victim. He borrowed a friend’s truck in order to spy-2-

on her. On one occ

asion, he hid in her

vehicle while

carrying a pellet pistol in order to frighten her. The defendant wrote numerous letters and notes to the victim during their separation. In October 1997, the defendant purchased the rifle he used to kill the victim, which was the first firearm he had ever purchased. Just a few hours prior to the killing, the defendant telephoned his son-in-law and asked where he could purchase ammunition for the rifle. Larry Dean Dickerson, the d efen dant, shot and kille d his estranged wi

fe during the ear

ly morning hours of December 20, 1997. Ellen Nunnery, a friend of the victim, testified she had given the victim a ride home. After the victim exited the vehicle, she stooped to speak to Nunnery through the window of the vehi

cle. Nunnery he

ard a shot, and the window shattered. A second shot rang out, and the victim collapsed beside the car. The medical examiner testified the victim had been shot twice, once on the left forea

rm and again in the

chest, with

the cause of death b

eing the wound to the

chest. The defendant

admitted to

law enforcement that he shot the victim. He said he parked his car, took his ri fle, and walked approximately 200 yards to a hiding place in the bushes across the street from the victim’s home. Fo

r an hour, he wait

ed in the bush

es for the victim to return home. He admitted firing two shots. After shooting the victim, the defendant disposed of the weapon and traveled to several different locations , incl uding Jackson, Memphis, Missouri, and Illinois before returning to his home, where he was arrested several days after the killing. The prosecution and the defense each presented expert testimony regarding the defe ndant’ s capacity to commit a premeditated murder. Dr. Nat Winston, a psychiatrist,

testified on behalf of the state that, in his opinion, the defendant had the ability to premeditate the killing. The defe ndant’ s expe rt witness, psycholog

ist Dr. John McCoy, st ated the defend

ant suffered fr

om obsess iv e compulsive disorder at th e time of the o ffense. He opined the defendant was not capable of premeditation due to the disorder. The jury convicted the defendant of premeditated

first degree murder, and he received a life sentence with the possibility of parole.

I. SUFFICIENCY OF THE EVIDENCE The defendant

argues the proof submitted by the state was insufficient to legally support his conviction of premeditated first degree murder. The defendant does not contest that he shot and killed his wife. Instead, h

e argues that the

evid ence established he did not have the mental capacity

to commit a premeditated murder.
Where sufficiency of

the evidence is challenged, the relevant question for an appellate court is whether, after viewing

the evidence in th

e light most favor

able to the prosecution, any rational trier of fact could have

found the essentia

l elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State-3-

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. Statev. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
In this case, psychologist Dr. John McCoy testified the defenda nt was suffe ring from obsessive comp ulsive disorder at the tim e he killed his wife . Dr. McCoy s tated that, due to t

his diso rder, th e defendant was not capable o

f premeditation. H

owever, psy

chiatrist Dr. Nat Winston opined the defendant was capable of

premeditation. The resolution of this conflicting testimony was for the jury to determine. Further, the proof established that the defendant purchased a rifle several weeks prior to the murder, and h

e had never bef

ore purchased a

firearm. A few

hours prior to the murder, he contacted his son-in-law to a sk where he could obtain ammunition fo

r the weapon. App

roximately one hour before the killing, the defendant drove to his wife’s home, parked his vehicle, got out his new rifle, wa lked a distance of 200 y ards to a hiding sp

ot in the bushes, an

d lay in wait f

or his wife to return. Upon her arrival, he shot her twice. The element of premeditation is a question of fact for the jury. Statev. Gentry , 881 S.W.2d 1, 3 (Tenn. Cri m. App. 1993). Fro

m the record bef

ore this court, a rational trier of fact could have found beyond a reasonabl e doubt that the defendant committed a premeditated murder. This issue is without merit.

II. PROSECUTORIAL MISCONDUCT The defendant also argues he should have been granted a mistrial due to statements made by the prosecutor during closing arguments. During his closing argument, the assistant district attorney stated the followi

ng regarding def

endant’s exper

t witness: Ladies and gentlemen, aren’t you tired of all this? Aren’t you tired of opening your newspaper, hearing on the radio and seeing on tv where crimina

l defendants brin

g in expert witnesses

to try and relieve

them of the respon

sibility of their own

actions? Defense counsel then objected to the prosecutor’s argument as being improper. The trial court admonished the prosecutor, outside the hearing of the jury, to exercise caution because he was “getting close to arguing that [the jury] should disregard the law.” Th e defense did not request a mistrial, and no curative instructions were requested or given. Initially, we would note

the defendant

has waived this issue by failing to request a mistrial contemporaneou

sly with the objection t

o the prosecutor’ s argument. See State v. Hall , 976 S.W.2d 121, 157 (Tenn.1998) (Appendix). However, this court will address the merits of the issue.
Gen eral ly, the scope of closing argument is subject to the trial court’s discretion. State v. Middlebrooks , 995 S.W.2d 550, 557 (Tenn. 1999). However , the parties should be granted wide latitude provided the argument is “tempe rate, predicated on e

vidence introduc

ed during the tri

al, relevant to the issues being tried, and not otherwise imprope r under the fact s or law.” State v.-4-

Thornton , 10 S.W.3d 229, 235 (Tenn

. Crim. App. 1999). In this case, the statements of the prosecutor were not predicated on the evidence submitted at trial and were, therefore , improper.
In the case of an imp

roper argume

nt, this court must

det ermine “whether the improper conduct ‘affected the verdict to the prejudice of the defendant.’” Middlebrooks , 995 S.W.2d at 559 (quoting Harrington v. Sta te , 215 Tenn. 338, 385 S.W.2d 7 58, 759 (1965)). To make this determination, we consider: (1) the challenged conduct in light of the facts and circumstances of the case; (2) the trial court an

d prosecution’s c

urative measure

s; (3) the prosecutor’ s intent in making th e argument; (4) the cumulative effect of the co nduct in conjunction with any other errors in the record; and (5) the case’s rela

tive strength an

d weakness. Statev. Bigbee , 885 S.W.2d 797, 809 (Tenn. 1994). In the case su b judice , the prosecutor’s improper s tatements were directe d at the fin dings of the defense expert regarding the defendant’s ability to premeditate the murder. The prosecutor’s improper remarks were brief due to the prompt objection by defense

counsel andthe trial court’s immediate instruction to the prosecutor. Following this direction, no further improper argument was made. Further, it is highly doubtful that the brief comments made by the prosecutor had any impact upon the

jury where the proof established that the defendant hid in the bushes with

a weapon for an

hour waiting for

his wife to return. For these reasons, we conclude the improper argument did not affect the jury’s verdict to the pre judice of the defendant and, thus, did not constitute reversible error.

III. DIMINISHED CAP ACITY JURY CHARGE The defendant mo

ved the trial cour

t to charge the jur

y as follows: Evidence has been submitted in this case by the defense concerning t h e defendant’s mental co ndition. This evidence should be considered by you, specifically

in reference t

o whether or not th

e defendant poss

ess ed the necessary “premeditation,” which is an element of murder in the first degree, or “knowledge” which is an element of murder in the second degree. While this evidence may not

establish a defe

nse wherein the d

efendant would be found not guilty of any offense, it may be considered by you in deliberating upon-5-

the necessary elements of murder in the first degre

e or murder in

the second degree. As I instructed you earlier, shou ld you find that the n

ecessary eleme

nts of any of the grades of homicide are not present, the defendant must be acquitted as to that charge. You ma y consider evidence of the defendant’s mental condition along with o the r relevant evidence in arriving at your verdict. This request was denied by the trial court. The defendant argues this was reversible error. While a criminal defendant’s diminished capacity does not constitute a defense capable of excusing or defeating a cri minal charge, ev

idence of the dimi

nished capacity i

s relevant to de termining the defendant’s mens rea . State v. Grose , 982 S.W.2d 349, 353 (Tenn. Crim. App. 1997)(citing State v. Phipps , 883 S.W.2d 138,148 (Tenn. Crim. App. 1994)). Once the trial court has properly instructed the jury regarding the mens rea necessary to find the defendant guilty of the charged offense, no further instruction regarding diminished capacity or the effect of the evidence relating to diminished capacity is necessary. See Grose , 982 S.W.2d at 354.
In the instant case the trial court’s jury charge regarding first degree m urder a nd the definition of

premeditation were taken verbatim from Tennessee Criminal Pattern Jury Instruction 7.01(b) (4 th ed. 1995), as foll ows: A premeditated act

is one done after the exercise of reflection and judgment. Premeditation mea

ns that the intent to

kill must ha ve been formed prior to the act itself. It is not necessar

y that the purpose t

o kill preexist

in the mind of the accused for any definite period of

time. The mental state of the accused at the time he allegedly decided to

kill must be carefully considered in order to determine whether the accused was suf

ficiently free f

rom excitement and passion as to be capable of premeditation. If the design to kill was formed with premeditation, it is immaterial that the accused may have been in a state of passion or excitement when the design was carried into effect. Furthermore, premeditation can be found if the de

cision to kill is first formed during the heat of passion, but the accused commits the act after the passion has subsided.
In addition, the trial court

instructed the jury in accordance with Tennessee Criminal Pattern Jury Instruction 4

2.22, as follows: The state must

prove beyond

a reasonable doubt the culpable mental state of the accused. Culpable mental state means the state of mind of the accuse

d at the time of the offense. This means that you must consider all of the evidence to determine the state of mind of the accused at the time of the commission of the offense. The state of mind which the state must prove is contained in the elements of the of fense as outlined in these instructions I’ve already given you.-6- In this case, you have heard evidence that the defendant might have suffered from a mental disease, defect

or condition which

could have affe

cted his capacit

y to form the culpable mental state required to commit a particular offense.
If you find from the evidence that the defendant’s capacity to form a culpable mental state may have been affected, then you must determine

beyond a reasona

ble doubt what the mental state of the defendant was at the time of the commission of the offense to determine which, if any, offense he is guilty of. These instructions were

accurate and s

ufficiently cove

red the material

provisi o ns of the requested charge. No further instructions were necessary.

CONCLUSION Based upon our review of the record, the judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE