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Chalmers v. State

Court of Criminal Appeals of Tennessee, Jackson

November 7, 2016

DEMARICEO CHALMERS
v.
STATE OF TENNESSEE

          Assigned on Briefs September 7, 2016

         Appeal from the Criminal Court for Shelby County No. 10-01339 Glenn I. Wright, Judge

          Eric Mogy, Memphis, Tennessee, for the appellant, Demarico Chalmers.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers, III, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

         A. Trial

         This case arises from the killing of the victim, Tina Nelson, on October 11, 2009. For his role in this killing, a Shelby County grand jury indicted the Petitioner for attempted aggravated robbery and first-degree felony murder. In our opinion from the Petitioner's first direct appeal, we summarized the facts presented at trial as follows:

On October 11, 2009, Tina Nelson, the victim, was driving home from her sister's house in Frayser, Tennessee. The victim stopped at a red light at the intersection of North Watkins and Burnham Street and was accosted by two men. One of the men, later determined to be [the Petitioner], shattered the driver's side window of the victim's car with his hand and the butt of a gun. The victim screamed and struck [the Petitioner] with a bottle. [The Petitioner] then fatally shot and killed the victim. Within minutes of the offense, [the Petitioner] and one of his co-defendants were apprehended. [The Petitioner] provided a statement to authorities admitting to attempting to rob the victim; however, [the Petitioner] claimed that he did not intend to kill the victim. [The Petitioner] was indicted for felony murder and attempted aggravated robbery. The following proof was adduced at his trial:

         Our Court went on to summarize all of the evidence presented at trial, which we will summarize for brevity's sake. The victim's sister testified that October 11, 2009, was the last time she saw her sister alive when her sister left her house at 8 p.m.

         Law enforcement officers testified about responding to this crime scene. Officer Onrico Atkins of the Memphis Police Department responded to a shooting call within a few seconds of the call and could not initially locate a victim. He found her, unresponsive, lying in a car near the storefront. He called an ambulance. A witness to the shooting who was at the scene saw "two [male blacks] approach the vehicle . . . [in] all dark clothing. One was armed with a gun, and they went running east from the intersection." The witness said the men were of "slim build, maybe six feet tall." When Officer Atkins left the scene, he saw two African-American men, one of whom was the Petitioner, standing in front of a red SUV. The officer approached turned on his lights, ordered the men to the ground, and saw a gun in the center console of the SUV.

         Sergeant James K. Smith examined three crime scenes and collected evidence, the first where the shooting occurred, the second where the victim's car came to a stop, and the third where the suspects were apprehended. From the primary scene, Sergeant Smith collected a spent .45 caliber shell casing, a piece of glass, and another separate piece of glass from the middle of the intersection, all of which were entered into evidence at trial. Sergeant Smith also photographed the victim's car, with both doors open and the hood up, auto glass from the middle of the intersection at Watkins and Burnham, the victim's property including her wallet, purse, cash, cell phone, and driver's license, and the interior of the victim's car, focusing on the driver's seat and console area. The photograph of the interior of the victim's car depicted the back portion of the driver's seat and the seat belt with possible blood on it. It also showed glass in the front seat. Sergeant Smith also discussed a photograph of what he described as a "bullet strike" on the passenger side door of the victim's car. Sergeant Smith collected a fluid sample of blood from the driver's side door of the victim's car, placed it in an envelope, and identified the envelope at trial. Sergeant Smith also processed the third crime scene, finding several pieces of relevant evidence.

         Dr. Marco Ross, a forensic pathologist and medical examiner with the Shelby County Medical Examiner's Office, testified regarding the victim's autopsy report, which was performed on October 12, 2009 at 9:15 a.m. The report showed that the victim suffered a gunshot entry wound to her upper chest just below her neck with the bullet exiting her right shoulder. The victim also had a gunshot graze wound at the tip of her left index finger, likely from the same bullet that entered her chest. The victim died as a result of the gunshot wound to her chest.

         Witnesses to the shooting testified. Mr. Larry Churchill was near the intersection of North Watkins and Burnham on the night of the offense and saw the victim's car was "four lanes of traffic across the street." After purchasing an item at the gas station, he entered his truck and began to exit the driveway of the store. He noticed "some guys standing on the corner . . . all dressed in black, and they were kind of fidgety." Mr. Churchill had to cross four lanes of traffic to return home. He said that he was beside the victim's car but traveling in the opposite direction. She was stopped at a red light. He saw two black men run up to the door of the victim's car. As Mr. Churchill's car became even with the victim's car, he saw one of the men "pull[ ] a gun out" and immediately fire it.

         Mr. Churchill said the men left the victim's car and ran "right in front of him." He followed the men, and observed that they ran across the street behind a library. He continued to follow them to a street that dead-ended into Burnham while his girlfriend called the police. Within minutes, he returned to the location of the victim's car, which had rolled to a building, and the police had arrived. After advising the police of what he had observed, police showed Mr. Churchill a photographic display, and he identified the Petitioner as the individual he saw shoot inside the victim's car. Mr. Churchill also identified the Petitioner at trial.

         Ms. Coats, another witness to the shooting, testified consistently with the testimony of Mr. Churchill. In addition, Coats said that as they turned to pass a burgundy car, which was sitting at a red light, she heard three gunshots. She watched the burgundy car as it went through the intersection and hit a wall. She said she was focused on the car because she thought there might be children in it. She said the car was at the red light, sat there for a couple of seconds, and then slowly rolled through the red light over the curb. She was unable to identify any of the perpetrators involved in the offense.

         Demar Wells, a crime scene officer, obtained the Petitioner's blood for a DNA sample. He also transported three gunshot residue kits which had been collected from Joseph Hill, the Petitioner, and the victim. Officer Stacy Milligan processed the victim's car. He collected what appeared to be blood samples from the steering wheel, the handle of the door, and the frame of the car door. He collected four DNA samples from the interior of the car, specifically from the steering wheel, the driver's seat, the driver's side interior, and the driver's side exterior. Officer Milligan also collected the bullet slug from the door panel of the victim's car. Officer Alpha Hinds identified evidence relating to the red SUV by which officers found the Petitioner ...


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