### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A ugus t 15

, 200 7

STA TE OF TE N N ES SE E v

. SHU ND ELL L . D ICKER SON

Direc t Appeal from the Cr iminal Cou rt f or Davidson Coun ty No. 2004-A- 538 Cheryl Blackbu rn, Judge

No. M2006- 02021-CCA -R3-C D - Filed Mar ch 20, 2008

Th e de fe nd a nt, S hu nd e ll L . D ic ke rs on , w a s c on vic te d o f f a c ili ta tio n o f f

ir st d e gr e e mur de r ( Cla ss A f e lon y) a nd se nte nc e d a s a Ra ng e II I, pe rs ist e nt o ff e nd e r t o s ixt y y e ars in p ri so n. He app e a ls h is

c on vic tio n a ndse nte nc e

. He arg ue s the tr ia l c ou rt e rr e d in: (1 ) p re c lud ing him fr om e nte ri ng int o

e vid e nc e a n a no ny mou s le tte r ma ile d to the po lic e in w hic h o the r p e rs on s w e re na me d a s r e sp on sib le fo r the c ri me ; ( 2) lim iti ng th e que sti on ing of a wi tne ss r e ga

rd ing his e xp e c ta tio ns of fa vo ra ble
treatment in exchange for his testimony; and (3) a llowing the prosecutor to make improper rema rks du ri ng c los ing arg ume nt. Fin a lly , th e de fe nd a nt a rg ue s e nh a nc e me nt f

act or s w e re imp ro pe rl y applied to incre ase his sente nce. A fter c are ful revie w, we a ffirm the tria l court with re g ar d to the le tte r, the qu e sti on ing of

the wi tne ss, a ndthe re mark s o f the pr os e c uti on . H ow e ve r, we re ma ndto the trial court with regar d to the issue of sentenc ing.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed in Part and Remanded

J OHN E VERET T W I L L I AMS , J., delivere d the opi nion of the c ourt, in which J ER R Y L. S MIT H and A LA N E. G LE NN , JJ., joined.

Robert E. C o o p er, Jr ., Attorney Ge nera l and Reporter ; Rachel W est Harmon, Assistant Attorney Gene ral; Victor S. (Tor

ry) Johnson, II I, District Attorney Gene ral; and Bret T. G unn and Robert E. McGuire , Assistant District Attorneys Gene ral, for the appe llant, State of Tenne ssee.

Ross E. Alderman, District Public Def ender

, and Jeffre y A. Deva sher, Laura J. Ge tz, and Car ol Dawn D eane r, Assistant Public Defe nders, f or the a ppellee, Shundell L. Dic kerson.

OP IN ION

This case involved the fatal shooting of Eric Johnson, the victim, in a par king lot outside a

“ Fa sh ion For c e ” sto re in D a vid so n Co un ty wh e re he ha d s ho pp e d w ith tw o c omp a nio ns , St ormy W o o d s a n d Rh o n d a T h o mp s o n , o n O c to b e r 1 9

, 2 0 0 3

. Fe ar in g th a t th e s h o o te r w o u ld r eturn, theT h e g u n w a s n o t i n tro d u c e d in to e v id e n c e d u rin g th e trial. 1

-2- vic tim ’s c omp a nio ns dr ov e a way a nd le ft the vic tim

lyi ng on the pa ve me nt. Th e y d ro ve to the ho me of a f riend a nd called the police to re port the shooting.

At t ri al

, t h e S tate pre sented thre e witnesses w ho testified that the def endant told them he killed the victim. Terre nce G regory testifi ed t h at, whil e they we re inc arc erated together , the defe ndant admit ted ki lling the vi ctim. Katrina Frierson, the mother of

the def endant’ s two children,
te sti fi e d th a t th e de fe nd a nt tol d he r that he sh ot the vic tim

. Ta mara El lio tt, the wi fe of a n a sso c ia te of the de fenda nt, a lso te stified that the defe ndant told he r he “knocke d off” the victim. Additionally, the State pre sented e vidence that a spent shell casing found at the murder scene was fir ed fr om the
same gun as a spe nt shel l casing found at the home of Ms. Frierson a fter the defe ndant shot her

1
te le vis ion du ri ng a n a

rg ume nt.

On appe al, the def

endant a rgues the trial court e rre d in: (1) exc luding an anonymous letter sent to police; (2) de nying h i m t h e opportunit y to cross-e xamine a w itness about his hope of favor able tre atment by the State; and ( 3) denying his m otion for a mistrial after imprope r re marks by the prosec ution. He also conte nds that he wa s sentence d improperly.

Prior to trial, the defe ndant fi l ed a motion to introduce an a nonymous letter sent to police wher ein the author

direc ted police to seve ral pe ople living in a house on “16th Ave . N.” The trial
court determined the contents of the letter constituted inadmissible he arsay and foun d t h e l et t er inadmissible. The trial court did not prevent the de fenda nt from q uestioning the police about the existence of the letter

and, in fa ct, allowed the defe ndant to ask questions about the letter

.

The de fenda nt argue s that the contents of the letter wer e not hea rsay be cause they wer e not offe red f or the truth of the matters asse rted there in and beca use the letter’s contents wer e to be use d to show that the detectives failed to adequately investigate the c ase r ather than to prove that someone else c ommitt ed the murde r. The State points out that the defe ndant did not question the detec tive

re ga rd ing his inv e sti gatio n in to the a lle gatio ns inc lud e d in the le tte r and , th e re fo re , is no t e nti tle d to relief now for his mistakes at trial.

T h e St a te c it e s T e n n e s s e e Ru le o f A p p e ll a te Pr o c e d u r e 3 6 ( a ) to s u p p o r t th e ar g u ment that the def endant ha d a duty to preve nt or nul lify the harmful eff ects of a trial c ourt’s er

ror. Rule 36(a ) does not requir e that re lief be gr anted to a party when it fails t o take a ction to preve nt or nullify the harmful e ffe cts of an e rror . Assuming arguendo that t h e ex cl u s i on of the letter was e rror , the defe ndant fa iled to take steps to nullify the err or when he did not ask pertinent questions re garding the investigation into the contents of the letter . The trial c ourt stopped the admission of the letter into evidence but did not prevent the de fenda nt from using the letter as a basis for questioning the police about their

investigative eff

orts. The State argue s, and we agre e, that in f ailing to pursue that lin e of qu e sti on ing , th e de fe nd a nt w a ive d a ny iss ue re ga rd ing the a dmi ssi bil ity of the le tte r andits
contents.T he r ecor d con t ai ns a c op y of t he t r ans cr i pt f r om t he procee di ng s w here t he w i t nes s had hi s s ent ence 2

su sp e n d e d to p ro b a tio n fo llo w in g h is tes tim o n y d u rin g th e d e fe n d a n t’s tria l.

-3- Ne xt, the de fe nd a nt a

rg ue s th a t th e tr ia l c ou rt de nie d h im the op po rtun ity to pr e se nt a complete de fense when the c ourt dec lare d the letter ina dmissibl e. T his contention is sim ply not

acc urate . The trial court allowed the defe ndant to use the letter as a tool to question the police a bout their i n v es t i gation as noted a bove. Nothing pre cluded the de fense from questioning police a bout having re ceive d informatio nf r o m a nan o n y mo u s s o u r c ew h ic hsuggested they c onsider other persons in their investigation. I t wa s not nece ssary that the c ontents of the letter be admitted for

the de fe nd a nt t o a sk

qu e sti on s a

bo ut the po lic e re c e ivi ng a le tte r. Furthe r, the de fe nd a nt ha s faile d to show how t he trial c ourt’s ruling that the conte nt of the letter w as inadmissible preve nted him from questioning the police re garding the pur suit of leads during their inve stigation.

Despite his assertion to the contrary, the defe ndant has not shown that the l etter w as critical to his defense . The letter showed no fa i l u re b y the police but mer ely suggested other leads they might follow in t heir investigation.

The de fenda nt also argue s that the trial court erre d in limi ting questions to Terrenc e Gr egory

abo ut h is h op e of

fa vo ra ble tr e a tme nt i n ex c ha ng e fo r his te sti mon y a ga ins t th e de fe nd a nt. At tr ia l, one witness, who reported that he was in ja il at the time of the shooting, testified that the def endant

a dmi tte d k ill ing the vic tim

. Defen se c ou ns e l a sk e d th e wi tne ss w hat he ha d b e e n p ro mis e d in exchange for

his testimony i n the ca se, to which the w itness replied that h e had been pr omised nothing. The witness ac knowledged that he wante d out of jail and was c lose to completing a sixyear sentenc e. The defenda nt continued his line of questioning rega rding “promises” in excha nge for testimony, and a

bench c onfer ence was he ld. During the co n fe rence, the tria l court told the de fe ns e that if

he c on tin ue d to imply that the wi tne ss’ s tes tim on y co uld se t him fr e e , the c ou rt wo uld allow the State to show that the witness co u l d not get out of jail. Counsel did not ask any further
qu e sti on s r e ga

rd ing the wi tne ss’ s exp e c ta tio ns fo r fa vo ra ble tr e a tme nt. Th e Sta te dida sk the wi tne ss if he ha d hopes that t he dis trict attorney c ould help him “whene ver this is all said and done,” and the witness replied in the a ffirmative.

Th e d e f e n d a n t n o w c o m p l a i n s t h a t h i s l i n e o f q u e s t i o n i n g w a s u n f a i r l y p r e c l u de d b e c a us e the witness was gr anted a

suspension of his sentenc e following the de fenda nt’s conviction due to the witness’s participation in the trial. Counsel w as permitted to que stion the witness rega rd i n g the 2
mot ivatio n f

or his te sti mon y b ut w a s n ot a llo we d to le a d th e jury in to b e lie vin g th e Sta te c ou ld reduc e his sentenc e. The S tate also questioned t he witness about hi s motivation for testifying. The witnesses’ motivations were adequately scrutinized f or consideration by the jury. We conclude the defe ndant was not pre

judiced whe n the court warne d him about his li ne of que stioning.

Next, the de fenda nt contends that the State engage d in pr osecutoria l misconduct when the State’s attorne y commented on the de fenda nt’s post-arr est silence. The S tate’s attorney ar gued that an innoce nt man would have contacte d his family and friends to support an alibi defe nse. However, the testimony elicited at trial showed that the def endant’ s family was una war e that the de fenda nt had been a ccuse d of the murde r until sever al m onths later. The State’s attorne y said to the jury, “I f you-4-

had fa mily member s and you knew you wer e at a birthday party, that’s what you would have done was to hea d those folks right down – you’d be campe d out in front of that police station eve ryday until som ebody listened to you.” The State argue s that the language

, which was objec ted to by the defe ndant, has be en take n out of context. After the rema rks by the State’s attorne y, the court advised the jury that it cannot c onsider the fac t that the defe ndant did not testify for any r eason. The State’s attorney the n clarified hi s comments by stating, “I’ m not commenting on – trying not to comment on Mr. Dicke rson testifying or not te stifying, or whateve r. I’ m talking about the rea sonable re action of his family members.”

Take n in c ontext, we conclude that the prosec utor’s rema rks wer e not intended to comment

on the defendant’s assertion of his right to rema in silent; rathe r, i t was int ended to point out that the defe ndant fa iled to bring forth witnesses on his beha lf. In United States v. Montes, 116 Fed. Appx. 105, 1 0 7 (9 t h Cir. 2004), a prose cutor c ommented, as he re, during closing argument about the defe ndant’s failure to call a witness to counter te stimony from the State. The court stated that the claim of prejudice fails “because the Fifth Amendment does not bar a prose cutor fr om commenting on a def endant’ s failure to call witnesses to spea k on his behalf. See United States v. Cabrer a, 201 F.3d 1243, 1250 (9th Cir. 2000).” We conclude that these c omment s by the prosec utor wer e not rega rding the def

endant’ s failure to testify or m ak e a statement to police; there fore , the def endant is not entitl ed to any r elief.

The de fenda nt also contends that he w as improper ly sentence d to sixty years in prison. A Cla ss Afe lony

c arr ie s a se nte nc e ra

ng ingfr om f

if te e n to sixty

y e ars

. The sente ncing r an g e for a Range II I, per sistent offende r convic ted of a Class A felony is forty to sixty year s.

Her e, the trial court found the following statutory enhanc ement fa ctors fr om Tennesse e Code An no ta te d s e c tio n 4 0- 35 -1 14 to b e app lic able : (1) The defe ndant has a previous history of criminal convic t i o n s o r criminal be ha vio r i n a dd iti on to tho se ne c e ssa ry to e sta bli sh the app ro pria te rang e ; ( 8 ) The de fenda nt, before trial o r s e n te n c in g , f a il e d to c o mp ly with the

c on dit ion s o f a

se nte nc e inv olv ing re le a se in the c ommun ity ; (9) The de fenda nt possessed or employed a f irea rm . . . during the commission of the of fe ns e ; (13)( B)At the time the fe lony was committed one (1) of t he following classifications

was a

pplicable to the de fenda nt: Released on pa role; and (16) The de fenda nt was adjudica ted to have c ommitt ed a de linquent act or a cts as a juvenile that would c onstitut e a f elony if committed by an a dult. Our review reflec ts that, during the s entenc ing of the de fenda nt, the trial court pr operly c onsidered the evidenc e pre sented by the pa rties with rega

rd to the enha nceme nt and mitigating factors a s set out in Tennessee Code Annotated se ctions 40-35-113 a nd 40-35-114.

In ligh t o f the holding in St ate v. Edw in Gomez I I, No. M2002-01209- SC-R11-CD, 2007 Tenn. LEX IS 884, at *17 (Te nn. Oct. 9, 2007), the trial court sh o u l d have only c onsidered the defe ndant’s prior c onvictions. There is information contained in the r ecor d to ref l ec t that the defe ndant had prior convictions for both f elonies and misdemeanors in a ddition to t hose nec essary to establish the nece ssary range of punishment. Evidence was also prese nted t hat t he defenda nt was-5-

inv olv e d in the bu sin e ss o f i lle ga l dr ug s a nd that he dis c ha

rg e d a fir e arm int o a tel e vis ion se t in his girlfriend’ s home. The defenda nt had three prior Class B felony convictions for a ggravated robbe ry. Proof was also introduced in the f orm of disposition forms from juvenile court where the def endant was plac ed on probation for a c onviction of theft over five hundred dollars. Proof wa s introduced that he violated that pr obation. In addition to these off enses, pr oof wa s introduced in the pr esente nce

re po rt that th e de fe nd a nt h a d b e e n c on vic te d o f c ri min a l impe rs on a tio n o n tw o o c c a sio ns , contributing to the delinquency of a minor, theft, a nd a driver’s li cense violation. The trial court’s application of the enhanc ement factor for a previous his tory of criminal convictions does not offe nd the Sixth Amendment.

Howeve r, bec ause the rec ord is unclea r as to the we ight the trial court plac ed on ea ch enhanc ing fac tor, we a

re c ompelled to re m an d t h i s case back to the trial court for further
proce edings.

Conclusion

Ba se d on the fo re go ing a nd the re c or d as a wh ole , we a ff ir m the tr ia l c ou rt ’s jud gme nt w ith
rega rd to the letter, the questioning of witnesses, and the rema rks of the pr osecution, and w e re mand to the trial court with re gard to the issue of sentenc ing.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE