        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 6, 2012 Session

                 STATE OF TENNESSEE v. DEARICK STOKES

                  Appeal from the Criminal Court for Shelby County
                   No. 09-01312     James M. Lammey, Jr., Judge


                 No. W2010-02622-CCA-R3-CD - Filed May 10, 2012


The defendant, Dearick Stokes, was convicted by a Shelby County Criminal Court jury of
felony murder and attempted especially aggravated robbery, for which he received concurrent
terms of life imprisonment and nine years, respectively. In this direct appeal, he argues that
the evidence was insufficient to sustain his felony murder conviction because the proof
showed that the killing of the victim occurred during an attempted aggravated robbery, rather
than an aggravated robbery, as alleged in the indictment. Following our review, we affirm
the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J AMES C URWOOD W ITT, J R., J., joined.

Robert Brooks (on appeal); and Marvin Ballin and Gray Bartlett (at trial), Memphis,
Tennessee, for the appellant, Dearick Stokes.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Lora Fowler and Kevin R. Rardin, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       According to the State’s proof at trial, on the afternoon of July 13, 2008, the defendant
and an accomplice shot and killed the victim, Bryan Hatchett, during an attempted robbery.
The defendant was subsequently charged in a two-count indictment with felony murder
during the perpetration of an aggravated robbery and attempted especially aggravated
robbery. In the following paragraphs, we have summarized the essential evidence that was
presented at the defendant’s February 9-13, 2010 jury trial.

       On July 13, 2008, the defendant asked Kenneth Richardson, his partner in a “dope”
business, to let him have the nine-millimeter pistol that the two men shared, telling him that
he was “fixin’ to go get some money.” That same evening, the defendant called Richardson
and told him that he had shot someone and injured his leg by jumping out of a moving
vehicle. A short time later, the defendant sold the pistol to Richardson.

        At approximately 4:12 p.m. on July 13, 2008, Kelvin Townsel was barbequing in the
front yard of his sister’s home, located at the corner of Warren and Ferguson in Memphis,
when he heard gunshots. A few minutes later, he saw three individuals, including one he
recognized as the defendant, running up the hill on Warren to the Clementine Apartments.
Townsel saw one of the three men toss an object into a field during his flight, and he passed
that information along to the police, who subsequently searched the field and found a .38
caliber revolver containing two spent rounds and one live bullet. Ballistics testing revealed
that a bullet recovered from the victim’s chest and another from his clothing had been fired
through the barrel of that gun.

         Memphis police officers responded to the shooting scene to find the victim’s four-
door Chevrolet HHR rolling slowly down the hill with its front passenger door and one of
its rear passenger doors open, the victim lying dead on the driver’s floorboard from multiple
gunshot wounds, a Buick Rendevous nearby with a nine-millimeter bullet lodged in its
steering column, and a spent nine-millimeter shell casing lying on the street. Over $300 in
cash was recovered from the victim’s body and a .8 gram bag of cocaine was found on the
floorboard of the front passenger side of the victim’s vehicle. A DNA swab sample taken
from the interior front passenger door of the victim’s vehicle matched the defendant’s DNA
profile.

         Vincent Roberts saw the defendant on three separate occasions on the evening of July
14, 2008. The first time, he was at home when his cousin brought the defendant by his house
to talk to him. The defendant first asked Roberts how much time he could get if he were with
someone who killed a person and then told him that he had been with “Dwayne” and the
victim in the victim’s vehicle when “Dwayne” suddenly pulled a gun. The defendant told
Roberts that he had gotten scared, jumped out of the vehicle, and then heard a gunshot.

       Approximately thirty to forty minutes later, Roberts was leaving a neighborhood
grocery when he overheard Kenneth Richardson say to the defendant, “I told you to leave the
gun – made me give it to you anyway – and now you got a murder case and a charge partner.”



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        Still later, the defendant returned to Roberts’ house, where he gave a somewhat
different version of events, telling Roberts that “Dwayne” had called the victim under the
pretense of wanting to buy some pills from him, that he (the defendant) had gotten into the
front passenger seat of the victim’s vehicle while Dwayne got into the back, that he and
Dwayne each pulled weapons on the victim to rob him, and that Dwayne then shot the victim
in the back of the head. The defendant also showed Roberts a skinned place on his leg,
telling him that his leg had been “scarred” when he jumped from the victim’s moving vehicle
after the shooting.

       Photographs of the defendant taken by the police on July 17, 2008, show that he had
a large scrape or injury to his lower right leg.

        On the afternoon of July 16, 2008 Kenneth Richardson was arrested on drug charges.
At the time of his arrest, he had a loaded nine-millimeter gun in his waistband and
identification that belonged to “Dwayne Cooper, Jr.” The nine-millimeter shell casing found
at the crime scene and the bullet recovered from the Buick Rendevous matched the weapon
recovered from Richardson.

                                        ANALYSIS

        The sole issue the defendant raises on appeal is whether the evidence was sufficient
to sustain his felony murder conviction. Specifically, he argues that the felony murder count
of the indictment was constructively amended by both the evidence at trial and the trial
court’s jury instructions, which allowed the jury to find the defendant guilty if it found that
the killing was committed in either the perpetration of, or attempt to perpetrate, an
aggravated robbery. According to the defendant’s argument, the killing’s having occurred
during the perpetration of a completed aggravated robbery was an essential element of his
charged offense of felony murder because the State “chose to allege only that [he] killed the
victim in the perpetration of a completed robbery, rather than the perpetration of an attempted
robbery.” The State argues, among other things, that the trial court properly instructed the
jury because the felony murder count of the indictment specifically referred to the felony
murder statute and the trial court used the pattern jury instruction for felony murder, which
provides that, in appropriate fact situations, the trial court may wish to charge criminal
attempt. We agree with the State.

       Count one of the indictment charged that the defendant “did unlawfully and with the
intent to commit AGGRAVATED ROBBERY kill BRYAN HATCHETT during the
perpetration of AGGRAVATED ROBBERY, in violation of T.C.A. [§] 39-13-202, against
the peace and dignity of the State of Tennessee.”



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        Both the Federal and Tennessee Constitutions guarantee a criminal defendant
knowledge of the “nature and cause of the accusation.” U.S. Const. amend. VI; see also
Tenn. Const. art. I, § 9. An indictment, therefore, must provide notice of the offense charged,
adequate grounds upon which a proper judgment may be entered, and suitable protection
against double jeopardy. Tenn. Code Ann. § 40-13-202 (2006); State v. Byrd, 820 S.W.2d
739, 740-41 (Tenn. 1991). “[A] defendant cannot legally be convicted of an offense which
is not charged in the indictment or which is not a lesser offense embraced in the indictment.”
State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997) (citing State v. Trusty, 919 S.W.2d
305, 310 (Tenn. 1996)).

       “[A]fter an indictment has been returned, its charge may not be broadened or changed
except by action of the grand jury.” State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim.
App. 2001). There is a difference, however, between a constructive amendment to an
indictment and a variance between the indictment and the proof:

       “[C]ourts [must] distinguish between constructive amendments of the
       indictment, which are reversible per se, and variances between indictment and
       proof, which are evaluated under the harmless error doctrine. The accepted
       test is that a constructive amendment of the indictment occurs when the jury
       is permitted to convict the defendant upon a factual basis that effectively
       modifies an essential element of the offense charged. . . . In such cases,
       reversal is automatic, because the defendant may have been convicted on a
       ground not charged in the indictment. . . . If, on the other hand, the variation
       between proof and indictment does not effectively modify an essential element
       of the offense charged, “the trial court’s refusal to restrict the jury charge to
       the words of the indictment is merely another of the flaws in trial that mar its
       perfection but do not prejudice the defendant.”

Id. (quoting United States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)).

        A variance arises when the proof presented at trial departs from the allegations in the
indictment. State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). Before a variance
will be deemed fatal to a prosecution, it must be both material and prejudicial. State v. Moss,
662 S.W.2d 590, 592 (Tenn. 1984); State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App.
2000). In general, a variance between an indictment and the proof at trial

       is not fatal if (1) the defendant is sufficiently informed of the charges levied
       against him so that he can adequately prepare for trial and, (2) the defendant
       is protected against a subsequent prosecution for the same offense based on
       double jeopardy grounds. The variance is not to be regarded as material when

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         the indictment and proof substantially correspond. A material variance occurs
         only if the prosecutor has attempted to rely at the trial upon theories and
         evidence that were not fairly embraced in the allegations made in the
         indictment.

State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993) (citations omitted). As long as the
defendant is not misled at trial, any variance is not considered to be a basis for reversal.
Johnson v. State, 596 S.W.2d 97, 103 (Tenn. Crim. App. 1979).

        We conclude that what occurred in the case at bar was not a constructive amendment
of the indictment but instead a nonfatal variance between the indictment and the proof. The
indictment and the proof substantially corresponded and the indictment, which referenced
the first degree murder statute, provided the defendant with sufficient notice and protection
against double jeopardy. Although the defendant asserts in his reply brief that “the
indictment on its face” did not provide him with notice that he was charged with murder in
the attempted perpetration of a robbery, he makes no claim that he was actually surprised at
trial or unprepared to defend against the charge. The defense strategy that the defendant
employed at trial, which consisted of his attempt to show that he was asleep at home at the
time the victim was killed and had no involvement in the crimes, would pertain equally to
a charge of murder in either the perpetration of, or attempted perpetration of, aggravated
robbery. Furthermore, the record does not show that the prosecutor attempted to rely on any
theories or evidence that were not “fairly embraced in the allegations made in the
indictment.” Mayes, 854 S.W.2d at 640. The defendant is not, therefore, entitled to relief
from his felony murder conviction.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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