         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,



                                          2
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



                                           3
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.




                                         4
       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.




                                         5
                                          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).

                                             7
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).

                                            8
CONCUR:




______________________________
DAVID G. HAYES, JUDGE




______________________________
JOHN EVERETT WILLIAMS, JUDGE




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