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Jimmerson v. State

Court of Appeals of Arkansas, Division III

December 4, 2019

MARKELL JIMMERSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CR-15-43] HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE

          James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

          MIKE MURPHY, Judge

         Appellant Markell Jimmerson was convicted by a St. Francis County Circuit Court jury of one count of first-degree murder, one count of manslaughter, one count of possession of a controlled substance with purpose to deliver (Xanax), one count of possession of a defaced firearm, and one count of simultaneous possession of drugs and firearms.[1] In accordance with the jury's recommendation, the circuit court sentenced Jimmerson to serve ninety-two years in the Arkansas Department of Correction. On appeal, Jimmerson argues the evidence was insufficient to support four of his five convictions, that the circuit court erred by denying his motion to suppress his custodial statement, and that the circuit court erred by denying his motions for a mistrial. We affirm.

         I. Procedural Facts and History

         In the early morning hours on December 25, 2014, police responded to a call about a suspicious vehicle. An officer arrived on the scene and located a white Chevrolet SUV. As he approached the vehicle, he saw two males who were unresponsive and had what appeared to be fatal wounds to their heads. The victims were identified as thirty-eight-year-old Kendrick Smith and forty-two-year-old Gary Thomas. Smith was in the driver's seat and Thomas was in the front passenger seat.

         About three hours later, the Forrest City Police Department dispatched units in reference to a vehicle in a ditch, and the occupant was reported to have a gun. Jimmerson was found passed out in the driver's seat of that vehicle. Officers located a handgun laying on the passenger seat and a pill bottle in Jimmerson's pocket containing thirty-two Xanax. Jimmerson was pulled out of the vehicle and taken into custody.

         Roughly fifteen hours after having been taken into custody, police interviewed Jimmerson. He agreed to speak with the detectives and executed a written waiver of his Miranda rights. Jimmerson initially denied any involvement with the homicides but eventually stated what happened. He explained that he told Smith he was trying to sell some Xanax, so Smith told him to get in the SUV with him and Thomas. Jimmerson stated that after the men had ridden around for a while, Thomas demanded the pills for cheaper than what Jimmerson was asking. Jimmerson said he tried to exit the vehicle, but Thomas grabbed him by his shirt and told him, "N**** I'll blow your mother******* brains out." Jimmerson said his first response was to pull his gun out and fire several shots. He explained that he did not intend to shoot Smith and that it was an accident.

         Jimmerson filed a pretrial motion to suppress the statement he gave officers on the night of the incident. Following a hearing, the circuit court denied Jimmerson's motion.

         At the jury trial, Jimmerson asserted that he shot Thomas in self-defense because he suffered from PTSD, and he believed Thomas had a weapon and intended to harm him. Jimmerson asserted that he accidently shot Smith. The State's witness, Dr. Lacy Matthews, a forensic psychologist at the Arkansas State Hospital, testified that she performed a court-ordered evaluation on Jimmerson in August 2016, and she found him to be competent. Her testimony also included background information on Jimmerson. She testified that Jimmerson had been purchasing Xanax off the street to self-medicate his anxiety from having previously been shot. But when she went through her review of questions during the examination, she testified that Jimmerson did not identify any other worries or concerns about anything other than his current legal situation. She admitted that she did not specifically go back and ask him about previously being shot. Because he did not report any symptoms of PTSD other than anxiety and considering the rest of her evaluation, Dr. Matthews opined that Jimmerson did not suffer from PTSD.

         The defense's witness, Dr. James Moneypenny, a psychologist in private practice, testified that he has evaluated several veterans and other persons who have PTSD. He testified that he evaluated Jimmerson and that his opinion was that Jimmerson suffers from PTSD. Dr. Moneypenny went through the criteria and explained that he diagnosed Jimmerson on the basis of the following: Jimmerson suffered two life-threatening events because he had been shot at twice; he suffered from intrusive symptoms because Jimmerson reported it was on his mind all the time; and he avoided triggering situations- for example, he did not go around his child's mother because he knew the guy that made the threat against him would be around. He further testified that because he met the criteria, the PTSD would interfere with his decision-making process. Dr. Moneypenny stated that he believed that is what was occurring when he was faced with a deadly threat from Thomas. He admitted there was probably some overlap between his disturbances and the ingestion of drugs and alcohol but that the substances would not necessarily have caused him to feel more or less fear in his life.

         When Dr. Moneypenny was specifically asked about the incident, he testified that Jimmerson perceived he was in danger because he said Thomas made a move and Jimmerson thought he was pulling out a gun. Dr. Moneypenny stated, "[H]is perception is what this is all about." He also testified that Jimmerson said that the shooting was an accident, and he did not know how Thomas specifically got shot in the back of the head.

         At the conclusion of the trial, the jury found Jimmerson guilty of first-degree murder in the death of Thomas and guilty of manslaughter in the death of Smith. The jury also found Jimmerson guilty of possession of a controlled substance with purpose to deliver (Xanax), possession of a defaced firearm, and simultaneous possession of drugs and firearms. He was sentenced to ninety-two years' imprisonment and now appeals.

          II. Discussion

         A. Sufficiency of the Evidence

         The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Terrell v. State, 2019 Ark.App. 433, at 5-6, __ S.W.3d__, __. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.

         1. First-degree murder

         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 conduct or a result of his 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) (Repl. 2013). It is axiomatic that one is presumed to intend the natural and probable consequences of his or her actions. Stearns v. State, 2017 Ark.App. 472, at 5, 529 S.W.3d 654, 657. A ...


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