Assigned on Briefs November 4, 2014
Appeal from the Criminal Court for Madison County No. 13-060 Roy B. Morgan, Jr., Judge
Lee R. Sparks, Jackson, Tennessee, for the appellant, Demarcus Keyon Cole.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
ALAN E. GLENN, JUDGE
According to the State's proof at trial, the defendant spent the evening of October 28-29, 2011, using cocaine and partying with friends at his Jackson apartment before he and two accomplices shot and robbed the victim, Demetris Cole. The victim died of his injuries two days later, and the defendant was subsequently indicted for first degree premeditated murder, first degree felony murder, and especially aggravated robbery. The first degree premeditated murder count was, however, nolle prosequied prior to trial.
The first witness at the defendant's trial was Ebony Jenkins, who spent the evening of October 28-29 at the defendant's apartment and was present when the victim was shot. She said the defendant, whom she had known for about a week, picked her up and took her to his apartment at about 9:00 p.m. that night and, after putting his two-year-old son to bed, used cocaine with her in the apartment. The victim arrived at about 10:00 p.m., and the three of them drank beer and smoked marijuana together. She and the defendant used more cocaine, and later some of the defendant's neighbors arrived to purchase marijuana from the victim. At about 1:00 a.m., while the defendant was gone from the apartment, she and the victim had sexual intercourse in a bedroom. At about 3:30 or 4:00 a.m., the victim left to purchase more condoms and some cigarettes and she followed him out the door to get a cigarette from him before he left. Outside, she saw the defendant and two other men in the defendant's truck. She also saw the victim stop briefly to talk with the defendant.
Jenkins testified that when the victim returned to the apartment he received a telephone call from someone wanting to purchase marijuana. She said he was in the living room weighing and bagging the marijuana when the defendant and two other men came into the apartment. As the three men walked to the back of the apartment, the victim asked which one wanted the bag of marijuana. Approximately thirty seconds later, the shorter of the defendant's two companions returned to the living room and said, "This is a fing robbery" as he pulled a gun on the victim. At about the same time, the second man came to the front of the apartment. One of the men ordered her to put blankets over her head, and she complied. As she sat on the couch with her head covered, she heard "a commotion" and one of the two men yelling to the victim, "Give me everything in your pockets. I want your money, your cellphone, your wallet, anything that you have in your pockets." Jenkins said she was unable to see anything, but the sounds she heard made her believe that the man she referred to as "the aggressor" was beating the victim.
Jenkins testified that the men called the defendant from the back and she heard the defendant say, "I got a son. I got a son." To her, however, the defendant's words did not sound sincere but instead as if he were putting on "an act" and pretending to be shocked at what was happening. She next heard "the aggressor" ordering the defendant and the second man to leave, the sounds of their footsteps going down the stairs, and the sounds of further struggle between "the aggressor" and the victim. She then heard two gunshots, followed by three more gunshots. After hearing "the aggressor" leave the apartment, she removed the blankets from her head to find the victim lying on the floor covered in blood.
Jenkins testified that she called 9-1-1 on her cell phone. Later, as she was with Sergeant Chestnut of the Jackson Police Department preparing to go to the police department for an interview, she noticed she had a missed call from the defendant on her cell phone. She gave Sergeant Chestnut the defendant's phone number and he tried to reach the defendant on his cell phone, but the defendant did not answer. At Sergeant Chestnut's request, she then texted the defendant using her own phone and, when the defendant called back, handed her phone to Sergeant Chestnut so that he could talk to the defendant.
On cross-examination, Jenkins clarified that the scuffle between the aggressor and the victim did not ensue until after the defendant had left the apartment. She acknowledged that the defendant was not in the apartment when the victim was shot. She further acknowledged that she never mentioned the defendant's voice having sounded insincere or fake in any of the three separate statements about the incident that she gave to the police. Finally, she testified that on one occasion, the defendant had used the victim's vehicle to pick her up because the victim had borrowed the defendant's vehicle to use on an out-of-town trip.
Officer Brandon Bankston of the Jackson Police Department testified that he was dispatched to the scene at approximately 4:50 a.m. When he arrived at the defendant's apartment, he found Jenkins present and the victim, who had gunshot wounds to the chest and head, lying in front of the living room couch. A lot of blood was in the area, and it appeared as if a struggle had taken place. ...