         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2007

            STATE OF TENNESSEE v. SHUNDELL L. DICKERSON

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2004-A-538    Cheryl Blackburn, Judge



                      No. M2006-02021-CCA-R3-CD - Filed July 18, 2008


The defendant, Shundell L. Dickerson, was convicted of facilitation of first degree murder (Class
A felony) and sentenced as a Range III, persistent offender to sixty years in prison. He appeals his
conviction and sentence. He argues the trial court erred in: (1) precluding him from entering into
evidence an anonymous letter mailed to the police in which other persons were named as responsible
for the crime; (2) limiting the questioning of a witness regarding his expectations of favorable
treatment in exchange for his testimony; and (3) allowing the prosecutor to make improper remarks
during closing argument. Finally, the defendant argues enhancement factors were improperly
applied to increase his sentence. After careful review, we affirm the judgment from the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN
E. GLENN , JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn and Robert E.
McGuire, Assistant District Attorneys General, for the appellant, State of Tennessee.

Ross E. Alderman, District Public Defender, and Jeffrey A. Devasher, Laura J. Getz, and Carol
Dawn Deaner, Assistant Public Defenders, for the appellee, Shundell L. Dickerson.


                                             OPINION

         This case involved the fatal shooting of Eric Johnson, the victim, in a parking lot outside a
“Fashion Force” store in Davidson County where he had shopped with two companions, Stormy
Woods and Rhonda Thompson, on October 19, 2003. Fearing that the shooter would return, the
victim’s companions drove away and left the victim lying on the pavement. They drove to the home
of a friend and called the police to report the shooting.
         At trial, the State presented three witnesses who testified that the defendant told them he
killed the victim. Terrence Gregory testified that, while they were incarcerated together, the
defendant admitted killing the victim. Katrina Frierson, the mother of the defendant’s two children,
testified that the defendant told her that he shot the victim. Tamara Elliott, the wife of an associate
of the defendant, also testified that the defendant told her he “knocked off” the victim. Additionally,
the State presented evidence that a spent shell casing found at the murder scene was fired from the
same gun1 as a spent shell casing found at the home of Ms. Frierson after the defendant shot her
television during an argument.

        On appeal, the defendant argues the trial court erred in: (1) excluding an anonymous letter
sent to police; (2) denying him the opportunity to cross-examine a witness about his hope of
favorable treatment by the State; and (3) denying his motion for a mistrial after improper remarks
by the prosecution. He also contends that he was sentenced improperly.

       Prior to trial, the defendant filed a motion to introduce an anonymous letter sent to police
wherein the author directed police to several people living in a house on “16th Ave. N.” The trial
court determined the contents of the letter constituted inadmissible hearsay and found the letter
inadmissible. The trial court did not prevent the defendant from questioning the police about the
existence of the letter and, in fact, allowed the defendant to ask questions about the letter.

        The defendant argues that the contents of the letter were not hearsay because they were not
offered for the truth of the matters asserted therein and because the letter’s contents were to be used
to show that the detectives failed to adequately investigate the case rather than to prove that someone
else committed the murder. The State points out that the defendant did not question the detective
regarding his investigation into the allegations included in the letter and, therefore, is not entitled to
relief now for his mistakes at trial.

        The State cites Tennessee Rule of Appellate Procedure 36(a) to support the argument that
the defendant had a duty to prevent or nullify the harmful effects of a trial court’s error. Rule 36(a)
does not require that relief be granted to a party when it fails to take action to prevent or nullify the
harmful effects of an error. Assuming arguendo that the exclusion of the letter was error, the
defendant failed to take steps to nullify the error when he did not ask pertinent questions regarding
the investigation into the contents of the letter. The trial court stopped the admission of the letter
into evidence but did not prevent the defendant from using the letter as a basis for questioning the
police about their investigative efforts. The State argues, and we agree, that in failing to pursue that
line of questioning, the defendant waived any issue regarding the admissibility of the letter and its
contents.

       Next, the defendant argues that the trial court denied him the opportunity to present a
complete defense when the court declared the letter inadmissible. This contention is simply not
accurate. The trial court allowed the defendant to use the letter as a tool to question the police about


        1
            The gun was not introduced into evidence during the trial.

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their investigation as noted above. Nothing precluded the defense from questioning police about
having received information from an anonymous source which suggested they consider other persons
in their investigation. It was not necessary that the contents of the letter be admitted for the
defendant to ask questions about the police receiving a letter. Further, the defendant has failed to
show how the trial court’s ruling that the content of the letter was inadmissible prevented him from
questioning the police regarding the pursuit of leads during their investigation.

        Despite his assertion to the contrary, the defendant has not shown that the letter was critical
to his defense. The letter showed no failure by the police but merely suggested other leads they
might follow in their investigation.

         The defendant also argues that the trial court erred in limiting questions to Terrence Gregory
about his hope of favorable treatment in exchange for his testimony against the defendant. At trial,
one witness, who reported that he was in jail at the time of the shooting, testified that the defendant
admitted killing the victim. Defense counsel asked the witness what he had been promised in
exchange for his testimony in the case, to which the witness replied that he had been promised
nothing. The witness acknowledged that he wanted out of jail and was close to completing a six-year
sentence. The defendant continued his line of questioning regarding “promises” in exchange for
testimony, and a bench conference was held. During the conference, the trial court told the defense
that if he continued to imply that the witness’s testimony could set him free, the court would allow
the State to show that the witness could not get out of jail. Counsel did not ask any further questions
regarding the witness’s expectations for favorable treatment. The State did ask the witness if he had
hopes that the district attorney could help him “whenever this is all said and done,” and the witness
replied in the affirmative.

       The defendant now complains that his line of questioning was unfairly precluded because the
witness was granted a suspension of his sentence following the defendant’s conviction due to the
witness’s participation in the trial.2 Counsel was permitted to question the witness regarding the
motivation for his testimony but was not allowed to lead the jury into believing the State could
reduce his sentence. The State also questioned the witness about his motivation for testifying. The
witnesses’ motivations were adequately scrutinized for consideration by the jury. We conclude the
defendant was not prejudiced when the court warned him about his line of questioning.

         Next, the defendant contends that the State engaged in prosecutorial misconduct when the
State’s attorney commented on the defendant’s post-arrest silence. The State’s attorney argued that
an innocent man would have contacted his family and friends to support an alibi defense. However,
the testimony elicited at trial showed that the defendant’s family was unaware that the defendant had
been accused of the murder until several months later. The State’s attorney said to the jury, “If you
had family members and you knew you were at a birthday party, that’s what you would have done
was to head those folks right down – you’d be camped out in front of that police station everyday


        2
          The record contains a copy of the transcript from the proceedings where the witness had his sentence
suspended to probation following his testimony during the defendant’s trial.

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until somebody listened to you.” The State argues that the language, which was objected to by the
defendant, has been taken out of context. After the remarks by the State’s attorney, the court advised
the jury that it cannot consider the fact that the defendant did not testify for any reason. The State’s
attorney then clarified his comments by stating, “I’m not commenting on – trying not to comment
on Mr. Dickerson testifying or not testifying, or whatever. I’m talking about the reasonable reaction
of his family members.”

        Taken in context, we conclude that the prosecutor’s remarks were not intended to comment
on the defendant’s assertion of his right to remain silent; rather, it was intended to point out that the
defendant failed to bring forth witnesses on his behalf. In United States v. Montes, 116 Fed. Appx.
105, 107 (9th Cir. 2004), a prosecutor commented, as here, during closing argument about the
defendant’s failure to call a witness to counter testimony from the State. The court stated that the
claim of prejudice fails “because the Fifth Amendment does not bar a prosecutor from commenting
on a defendant’s failure to call witnesses to speak on his behalf. See United States v. Cabrera, 201
F.3d 1243, 1250 (9th Cir. 2000).” We conclude that these comments by the prosecutor were not
regarding the defendant’s failure to testify or make a statement to police; therefore, the defendant
is not entitled to any relief.

        A written waiver appears in the record, and the trial court sentenced the defendant under the
2005 amendments to the Tennessee Criminal Sentencing Reform Act of 1989. Therefore, the
weighing of the various mitigating and enhancement factors are left to the trial court’s sound
discretion as set forth in State v. Stacey Joe Carter, No. M2005-02784-SC-R11-CD, 2008 Tenn.
LEXIS 363, at *27 (Tenn. May 19, 2008). Since the Sentencing Act has been revised to render these
factors merely advisory, that discretion has been broadened. We are left with a narrower set of
circumstances in which we can find that a trial court abused its discretion in setting the length of the
defendant’s sentence.

        The defendant also contends that he was improperly sentenced to sixty years in prison. He
was convicted of facilitation of first degree murder (Class A felony) and sentenced as a Range III,
persistent offender to sixty years in prison. A Class A felony carries a sentence ranging from fifteen
to sixty years. The sentencing range for a Range III, persistent offender convicted of a Class A
felony is forty to sixty years.

      The trial court found the following statutory enhancement factors from Tennessee Code
Annotated section 40-35-114 to be applicable:
      (1)     The defendant has a previous history of criminal convictions or criminal
              behavior in addition to those necessary to establish the appropriate range;
      (8)     The defendant, before trial or sentencing, failed to comply with the conditions
              of a sentence involving release in the community;
      (9)     The defendant possessed or employed a firearm . . . during the commission
              of the offense;
      (13)(B)At the time the felony was committed, one (1) of the following classifications
              was applicable to the defendant: Released on parole; and


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       (16)    The defendant was adjudicated to have committed a delinquent act or acts as
               a juvenile that would constitute a felony if committed by an adult.

        As set forth above, a trial court’s weighing of the various mitigating and enhancement factors
has been left to the trial court’s sound discretion. The Tennessee Supreme Court in State v. Stacey
Joe Carter, 2008 Tenn. LEXIS 363 at *27, stated that, even if a trial court recognizes and enunciates
several applicable enhancement or mitigating factors, it does not abuse its discretion if it does not
increase beyond the minimum sentence or reduce the sentence from the maximum sentence based
on those factors.

         An appellate court is therefore bound by a trial court’s decision as to the length of the
sentence imposed so long as it is imposed in a manner consistent with the purposes and principles
set out in Tennessee Code Annotated sections 40-35-102 and 40-35-103 of the Sentencing Act. The
trial court considered all of the criteria set out in section 40-35-210(b), imposed a sentence within
the applicable range, and set forth its reasons for imposing the sentence. The relevant findings are
adequately supported by the record. We conclude the presumption of correctness attaches to the trial
court’s decision to sentence the defendant to sixty years for the homicide offense. Therefore, we
affirm the defendant’s sentence from the trial court.


                                            Conclusion

       Based on the foregoing and the record as a whole, we affirm the trial court’s judgment.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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