IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
January 21, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9707-CR-00293
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER,
ERIK LEE JACKSON, ) JUDGE
)
Appellant. ) (Second-Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD McGEE JOHN KNOX WALKUP
601 Woodland St. Attorney General & Reporter
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
-and-
HELEN DONNLEY
Asst. District Attorneys General
Washington Square, Suite. 500
222 Second Ave., North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged by indictment with the first-degree
premeditated murder of Bryant Perkins.1 Following a jury trial and sentencing hearing,
he was found guilty of second-degree murder and sentenced as a Range I standard
offender to twenty-one years imprisonment. He now appeals, arguing that the trial court
erred in failing to suppress his statement to police and in improperly sentencing him.
Finding no merit to the defendant’s arguments, we affirm.
On January 12, 1995, after coming home from school, seventeen-year-old
Bryant Perkins and his friend, Robert Wilkerson, were walking down the street in Perkins’
neighborhood when a maroon car pulled next to Perkins. As the driver of the maroon car
engaged Perkins in conversation, a light blue car carrying several passengers pulled
along side the maroon car, trapping Perkins between the two cars. Apparently, one of
the passengers in the blue car, Marcus Jackson, the defendant’s brother, believed that
Perkins had stolen his car earlier that day. Somebody in the back seat of the blue car
yelled, “Is that the nigger?” Perkins put up his hands and said, “Mario, man, you know
me,” but the driver of the blue car said, “Kill him.” Wilkerson immediately ran, but he
heard many gunshots behind him.
Several people witnessed the shooting, including two fourteen-year-olds
who were sitting on a house porch nearby, a neighbor who was standing at the corner of
his house, and a neighbor who was driving down the street. Each of these witnesses saw
the defendant exit one of the cars and his brother, Marcus, exit the other2 and shoot
1
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 neighbors testified that the defendant was in the maroon car, while one of the other
neighbors testified he saw the defendant exit the blue car.
2
Perkins multiple times. Perkins died shortly thereafter of multiple gunshot wounds.
Twenty-five shell casings from .45 caliber rounds were found in the vicinity
of the shooting. Three bullets were removed from Perkins’ body. In addition, a house
near the scene of the shooting, which was occupied 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 witnesses at the scene, police officers went to the
Jackson brothers’ house, believing Marcus Jackson to be a suspect. At the time, the
defendant was not home. After talking with detectives, Marcus Jackson confessed and
was immediately arrested. The detectives’ conversations with Marcus and their
investigation of the shooting led them to believe the defendant was involved in the
shooting.
On January 14, two days after the shooting, the defendant was stopped on
a traffic violation and arrested when weapons were discovered in his vehicle. The
defendant was held for questioning by the investigating homicide detectives, and the
defendant told them he was involved in the shooting. Specifically, the defendant stated,
“Okay. I was there. I shot with the rifle. I only shot one time.” The defendant sought to
suppress this statement. Following a two-day suppression hearing, the trial court refused
to suppress the defendant’s statement, finding that the defendant was advised of his
rights but never asserted them and that there was nothing intimidating about the
detectives’ questioning.
The defendant first challenges his conviction, arguing that the trial court
should have suppressed his statement. This argument will not afford the defendant relief
because the evidence against the defendant was overwhelming. Four individuals who
3
witnessed the shooting identified the defendant as one of the shooters, which itself is
sufficient evidence to sustain the defendant’s conviction. Thus, even assuming that the
trial court erred in failing to suppress 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 failing to consider his youth as a mitigating factor under T.C.A. § 40-35-
113(6)(providing that a sentence may be mitigated on proof that the “defendant, because
of youth or old age, lacked substantial judgment in committing the offense”). With regard
to this mitigating factor, the trial court stated:
I don’t -- I don’t know what considerations went into making this a second
degree instead of a first degree unless it -- unless it was that both
defendants are, indeed, young. And, to the extent that being young. . .
.their -- their young age is a mitigating factor, I make the finding of fact that
that is the cause of the second degree murder conviction, and I’m not
considering it again as a mitigating factor in the sentencing.
The defendant argues this reasoning was erroneous and that thus, the mitigating factor
of youth should be applied to reduce his sentence. Even assuming the trial court’s
reasoning was erroneous, however, the defendant’s argument lacks merit. The
defendant was a twenty-year-old adult at the time of the shooting, and there is no
evidence in the record that would tend to demonstrate an inability to appreciate the nature
of his conduct. State v. Adams, 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 erroneously 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 sustained intent to violate the law motivated the criminal conduct.” The
defendant contends that using pending charges to rebut a mitigating factor has the same
4
effect as considering them as an aggravating factor, and he argues the mere fact that
charges are pending, without some evidence that the defendant engaged in criminal
conduct, is irrelevant for sentencing purposes.
As a Range I standard offender convicted of second-degree murder, a
Class A felony, the defendant faced a possible sentence of fifteen to twenty-five years.
After finding that two enhancing factors, 3 which the defendant does not challenge, and
no mitigating factors were applicable to this case, the trial court sentenced the defendant
to twenty-one years incarceration. Even assuming that the trial court somehow
erroneously considered pending charges without evidence of criminal behavior, the
defendant would not be entitled to relief on this basis because considering all the
circumstances in this case, a sentence of twenty-one years is appropriate.
The trial court’s judgment is affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
GARY R. WADE, Presiding Judge
______________________________
JERRY L. SMITH, Judge
3
The trial court found that the defendant was a leader in the offense 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