DERRICK A. DIXON APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE UNION COUNTY CIRCUIT COURT [NO. 70CR-15-338-1]
HONORABLE HAMILTON H. SINGLETON, JUDGE
Hancock Law Firm, by: Charles D. Hancock, for appellant.
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
COURTNEY RAE HUDSON, ASSOCIATE JUSTICE.
Derrick Dixon appeals his convictions in the Union County
Circuit Court of murder in the first degree and battery in
the first degree. Dixon received a life sentence for his
murder conviction and forty years each on the battery and
possession-of-a-firearm convictions. Because the jury found
that Dixon used a firearm in the murder and the battery, he
received an additional fifteen years on each of those
convictions. The circuit court imposed all sentences
consecutively. For reversal, Dixon argues that the circuit
court erred when it denied his request to instruct the jury
as to the lesser-included offenses of murder in the second
degree, extreme-emotional-distress manslaughter, and battery
in the second degree. We affirm.
was charged by amended information with murder in the first
degree in violation of Arkansas Code Annotated section
5-10-102 (Repl. 2013) for the September 2, 2015 shooting of
Cordario Floyd and battery in the first degree in violation
of Arkansas Code Annotated section 5-13-201 for the shooting
of Ja Terrance Hamilton on the same day. The State sought
enhanced penalties under Arkansas Code Annotated section
16-90-120 (Repl. 2016) on both counts due to Dixon's use
of a firearm. The State also sought enhanced penalties on
both counts pursuant to Arkansas Code Annotated section
5-4-501 based on Dixon's prior felonies.
jury trial was held on February 27–28, 2018. At trial,
Hamilton testified that he was a passenger in a car that
Cordario Floyd was driving down Brewster Street in El Dorado
when Antonio Critton flagged them down in front of a
residence. Floyd got out of the vehicle while Hamilton
remained inside. Hamilton testified that Floyd went to the
porch and was talking with Critton. Preston Stanley and Dixon
were also on the porch. According to Hamilton, while Floyd
and Critton were talking, Dixon left the porch and went to
the side of the house. Hamilton testified that when Dixon
returned, he shot Floyd. Hamilton said that Dixon was at
about arm's length from Floyd when he fired the shot.
to Hamilton, Dixon then left the porch and shot him in the
neck while he was sitting in the vehicle. Hamilton testified
that he then fled, and Dixon shot him a second time in the
back-shoulder area. Hamilton fell in a neighboring yard,
injuring his knee in the process. Eventually Hamilton had
surgery on his knee and for the shoulder wound. No surgery
was required for Hamilton's neck wound because the bullet
passed through his neck.
testified that he and Dixon were on the porch when Floyd
arrived, and he and Floyd began "talking and
laughing." At some point, according to Critton, Dixon
left the porch. Stanley remained on the porch. Critton
described hearing footsteps as someone returned from the area
where Dixon had been earlier. Critton turned to see who it
was and saw a muzzle flash. Critton heard several shots and
Smith, Dixon's then girlfriend, also testified. Smith was
not at the residence when the shooting occurred, but her
involvement began when Dixon called her and asked her to come
get him in an area near his mother's residence. Smith
testified that when she arrived in the area, Dixon "came
out of nowhere" and got into the car with her. According
to Smith, Dixon directed her to take him to his father's
house, but no one answered the door. Dixon returned to the
vehicle and ordered her to drive to another area. Dixon also
discussed needing more bullets. Smith testified that, after a
period of time, Dixon began beating on the dashboard and
said, "[T]hey got me f'd up and I don't bother
nobody and they were messing with me and I go and kill
somebody they mess with me." Dixon also mentioned
shooting another person. Smith eventually left Dixon at
another individual's home and drove to the crime scene
where she reported Dixon's whereabouts.
Craig, the state medical examiner, testified that Floyd died
as a result of a gunshot wound to his head. According to
Craig, there was no stippling around the wound. Craig
explained that stippling is small red or brown spots around a
wound that result from skin abrasions caused by gunpowder
coming out of the barrel of the gun. The lack of stippling
indicates that the fatal shot was fired from some distance.
Craig concluded that the gun was fired from more than three
trial, the circuit court considered Dixon's arguments in
favor of his proffered instructions for lesser-included
offenses. Ultimately, the jury was instructed only on murder
in the first degree for Floyd's shooting and battery in
the first degree for Hamilton's shooting. The circuit
court denied Dixon's request to instruct the jury on
murder in the second degree, manslaughter, and battery in the
second degree. A jury convicted Dixon on all counts, and
Dixon was sentenced as set forth previously. Dixon filed a
Standard of Review
circuit court's ruling on whether to submit a jury
instruction will not be reversed absent an abuse of
discretion. Bruner v. State, 2013 Ark. 68, 426
S.W.3d 386. An abuse of discretion is a high threshold that
does not simply require error in the circuit court's
decision, but requires that the circuit court act
improvidently, thoughtlessly, or without due consideration.
Collins v. State, 2019 Ark. 110, 571 S.W.3d 479.
refusal to give an instruction on a lesser-included offense
is reversible error if the instruction is supported by even
the slightest evidence. Friar v. State, 2016 Ark.
245. However, we will affirm the circuit court's decision
to not give an instruction on a lesser-included offense if
there is no rational basis for doing so. Id. Dixon
argues that the circuit court erred with respect to both his
murder charge and his battery charge.
Second-Degree Murder Instruction
circuit court instructed the jury on only first-degree murder
for Floyd's shooting. A person commits murder in the
first degree if, "with a purpose of causing the death of
another person, the person causes the death of another
person." Ark. Code Ann. § 5-10-102(a)(2). "A
person acts purposely with respect to his or her conduct or a
result of his or her conduct when it is the person's
conscious object to engage in conduct of that nature or to
cause the result." Ark. Code Ann. § 5-2-202(1).
Dixon proffered a second-degree murder instruction pursuant
to Arkansas Code Annotated § 5-10-103(a)(1), which
provides that a person commits murder in the second degree if
"the person knowingly causes the death of another person
under circumstances manifesting extreme indifference to the
value of human life." A person acts knowingly with
respect to "a result of the person's conduct when he
or she is aware that it is practically certain that his or
her conduct will cause the result." Ark. Code Ann.
argues that Smith's testimony that Dixon was agitated
when he was in her car and that he said "they got me
f'd up and I don't bother nobody and they were
messing with me" provides some evidence that there was
an argument on the porch that escalated into physical
violence. Dixon also notes that Floyd had a firearm on his
person and that a digital scale was found at the scene.
However, no eyewitness described any argument or altercation.
Rather, the testimony was that Floyd and Critton were
"talking and laughing" before Dixon shot Floyd.
Likewise, no evidence was introduced to indicate that Floyd
ever brandished his firearm or that the digital scales
factored into any disagreement. Eyewitness testimony
consistently described a scene where Dixon shot Floyd in the
head at close range and in the absence of any provocation.
The circuit court did not abuse its discretion by refusing to
give Dixon's proffered second-degree murder instruction
because there was no rational basis for doing so.
also proffered an instruction for manslaughter pursuant to
Arkansas Code Annotated § 5-10-104(a)(1)(A), which
provides that a person commits manslaughter if "the
person causes the death of another person under circumstances
that would be murder, except that he or she causes the death
under the influence of extreme emotional disturbance for
which there is reasonable excuse." Dixon argues that his
statements to Smith, along with his beating on the dashboard
of her vehicle, provide evidence that he was under the
influence of extreme emotional disturbance for which there
was reasonable excuse. However, there is no dispute that
Dixon's interaction with Smith was after the murder was
committed. Thus, Dixon's statements do not provide any
evidence as to his mental state when he shot Floyd or