Jackson v. State

Decision Date29 March 2013
Docket NumberCR-07-1208
PartiesDemetrius Avery Jackson, Jr. v. State of Alabama
CourtAlabama Court of Criminal Appeals

Demetrius Avery Jackson, Jr.
State of Alabama



OCTOBER TERM, 2012-2013
Dated: March 29, 2013

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Jefferson Circuit Court, Bessemer Division
(CC-06-1620; CC-06-1621)

On Return to Remand

BURKE, Judge.

Demetrius Avery Jackson, Jr., was convicted of capital murder for the intentional murder of Officer Mary Smith of the Fairfield Police Department, while she was on duty, in violation of § 13A-5-40(a)(5), Ala. Code 1975. The jury

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returned an advisory verdict of life imprisonment without the possibility of parole by a vote of ten in favor of life without parole and two in favor of a sentence of death. Following a separate sentencing hearing before the trial court, the court determined that the two aggravating circumstances found to exist, that the capital offense was committed by a person under a sentence of imprisonment, § 13A-5-49(1), Ala. Code 1975, and that the capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws, § 13A-5-49(7), Ala. Code 1975, outweighed the nonstatutory mitigating circumstances. The trial court determined that no statutory mitigating circumstances were present or proved in this case; however, several nonstatutory mitigating circumstances were considered and found to be present. The nonstatutory mitigating circumstance accorded the most weight was the jury's advisory verdict. Jackson was thereafter sentenced to death. Jackson was also convicted of the attempted murder of Officer Eric Burpo, §§ 13A-6-2 and 13A-4-2, Ala. Code 1975, and was sentenced to life imprisonment on that conviction.

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The evidence presented at trial indicated that, on the morning of October 23, 2006, Officer Mary Smith, of the Fairfield Police Department, responded to a call concerning a suspicious person or persons. Patricia Elaine Crear, the dispatcher for the Fairfield Police Department, testified that she had received a call from a female citizen describing two men in black ski masks who were close to her mother's home. Crear dispatched two units, Officer Mary Smith in her police vehicle and Officer Eric Burpo in his police vehicle, to the scene. Officer Smith arrived first and got out of her vehicle. Officer Burpo testified that, as he neared the scene, he saw her approach two black males who were standing on a corner, and she instructed the men to come to her vehicle and put their hands on the hood of her car. Officer Burpo testified that one of the men was older1 and that he complied and placed his hands on the front of the vehicle's hood. He further heard Officer Smith instructing the younger man, who was wearing a face mask, to get his hands away from his pockets. Officer Burpo then began to get out of his vehicle,

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and he saw the younger man reach into a front pocket of his jacket and pull out a gun. The man shot Officer Smith once and then turned and began shooting at Officer Burpo. He walked up to Officer Burpo, who was slumped across the front seat of his vehicle, and shot him. Officer Burpo testified that because the man was wearing a mask, he was only able to see "his eyes and the pinks of his lips." (R. 521.) After the man shot Officer Burpo, he watched the man turn and walk back to Officer Smith, step over her body, and close the trunk of his vehicle; Officer Burpo described the vehicle as a brown "Chevy Caprice, old body style, the long box style with the long taillights on the back." (R. 521.) Officer Burpo then watched the man drive away.

As he did so, Officer Burpo attempted to call in to dispatch that officers were "down" (R. 525), as well as to inform them of the license tag number of the vehicle, a description of the vehicle, and its direction of travel. However, other calls were coming into dispatch at the same time, so he was being cut off while attempting to convey the information. He testified that he had twice stated the tag

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number to be "1 Golf 0067 Tango." (R. 521.)2 Officer Burpo testified that after the Caprice drove away, he attempted to get out of his vehicle but was unable to do so. He further testified that the older man ran up to the front passenger window of Officer Burpo's vehicle and stood there. Officer Burpo pointed his weapon at the older man, instructed him not to move, and asked him for help. He laid his weapon down to respond to the police radio, and the man ran away. Officer Burpo testified that he was shot in the back and the thigh during the offense.

Subsequently, Officer Burpo was shown a photographic lineup and was asked to identify the older man, but he was unable to identify anyone. He was also shown a photographic lineup and asked if he could identify the shooter. He stated that he was "about 90 percent sure" (R. 543) that it was one man, but because the man wore a mask and he could only see the shooter's eyes, the dark skin, and the pinks of his lips, and

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could tell that he had a fat face, he could not be certain. The man he identified was not Jackson.

Demetrius Avery Jackson, Sr. ("Jackson, Sr."), Jackson's father, testified that he was in business with his father, Trice Jackson, and his brother, Elice Jackson ("Elice").3 Their business involved roofing, as well as cutting down and removing trees. On the morning of the offense, Jackson, Sr., stated that Jackson telephoned him and told him that Elice needed a ladder for a job they were doing for Vannie Newton; specifically to remove a tree from her roof. Jackson, Sr., testified that he did not know if Jackson was with Elice at the job. He acknowledged that Jackson drove a brown or maroon Caprice Classic. Jackson, Sr., testified that he drove to the house with a ladder approximately 30 minutes to an hour after receiving the call. He stated that when he drove up to the house in his truck, he saw what he believed to be a roadblock down the street. He then saw Elice standing by the sidewalk and Newton standing on her porch. According to Jackson, Sr., Elice got into the truck and Jackson, Sr., then drove away.

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Jackson, Sr., testified that, after leaving the scene,4 Elice told him that "[t]he police just got shot" and that he saw someone wearing a mask shoot them. He also told Jackson, Sr., that he was standing in Newton's driveway when a Fairfield Police Officer drove up and asked him to approach the police vehicle. He was instructed to place his hands on the hood of the vehicle. After placing his hands on the front hood, Elice heard shots but did not move because he did not know who was shooting or where the shots were coming from. When he turned, he saw a man wearing a mask and a lady lying in the street. Elice walked to the other police car, looked into it and saw Officer Burpo lying in the seat. He walked over to look at Officer Smith and then walked down the street to Newton's house. Jackson, Sr., testified that, as he drove away from the scene, his "main concern was ... to know where [his] dad was, [he] wanted to know where [his] son was." (R. 609.)

Jackson, Sr., testified that he drove to the home of Santana Pendleton, the mother of Jackson's baby, in order to find Jackson. He testified that Jackson's car was there. He

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had a brief conversation with Jackson and, when Jackson asked him for money, he gave Jackson $100.

Newton testified that she went to her porch within minutes of hearing the shots and that Jackson, Sr.'s truck was in her driveway and that she questioned Jackson, Sr., and the other man with him concerning what had happened. They told her that someone had been shot and then they loaded up something from her porch and left. She heard Officer Burpo screaming for help at the same time.

Sgt. McKenzie Marbury, of the Fairfield Police Department, testified that on the morning of the offense he had heard the dispatch concerning the suspicious persons and that two units had responded. He then heard the distress call from Officer Burpo and responded to the scene. He arrived within approximately two minutes of the distress call. Sgt. Marbury testified that he heard Officer Burpo screaming for help. He did not see a Chevrolet Caprice vehicle or a truck present at that time.

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Santana Pendleton testified that Jackson came to her home on the morning of the offense around 11:00.5 She testified that he was wearing dark clothing and a black cap with white writing on it, and was driving his brown Chevrolet Caprice. She testified that she "had a gut feeling that something had already done went down." (R. 720.) Jackson was holding his head down and cursing. Upon arriving, he asked her "to turn to the news." (R. 715.) A few minutes later, Elice and Jackson, Sr., arrived. Jackson parked his car in the backyard, which he had never done, and instructed Pendleton to tell her aunt, with whom she lived, that something was wrong with the car. Approximately 30 minutes later, he left, but he left his car in the backyard. He telephoned her...

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