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Dixon v. State

Supreme Court of Arkansas

September 19, 2019

DERRICK A. DIXON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL 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.

          Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for appellee.

          COURTNEY RAE HUDSON, ASSOCIATE JUSTICE.

         Appellant Derrick Dixon appeals his convictions in the Union County Circuit Court of murder in the first degree and battery in the first degree.[1] 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.

         I. Background

         Dixon 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.

         The 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.

         According 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.

         Critton 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 fled.

         Latoya 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.

         Adam 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 feet away.

         At 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 timely appeal.

         II. Standard of Review

         A 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.

         III. Analysis

         The 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.

         A. Second-Degree Murder Instruction

         The 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. § 5-2-202(2)(B).

         Dixon 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.

         B. Manslaughter Instruction

         Dixon 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 ...


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