NICHOLAS DEMORST A/K/A NICHOLAS MARCEL DEMORST A/K/A NICHOLAS M. DEMORST A/K/A NICHOLAS DE MORST A/K/A MARCEL DENEGAL A/K/A LA APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 06/04/2015
COUNTY CIRCUIT COURT HON. DALE HARKEY
ATTORNEYS FOR APPELLANT OFFICE OF STATE PUBLIC DEFENDER BY:
GEORGE T. HOLMES PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:ANTHONY N. LAWRENCE III
GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
Hunter Miller was shot and killed during a robbery attempt
while trying to illegally buy prescription narcotics from a
friend of a friend (of a friend, of a friend). Nicholas
Demorst was linked to the botched drug deal by phone records,
and he was subsequently identified as the killer by the other
participants in the abortive deal. Demorst was convicted of
capital murder, and on appeal he contends he received
constitutionally ineffective assistance of counsel and that
the trial court committed plain error in allowing into
evidence recordings of phone calls Demorst made from jail, as
well as his identification as the shooter by the two
eyewitnesses. We find no error and affirm.
Miller was addicted to prescription pain medication, and his
supply had run out. On January 14, 2014, he encountered an
acquaintance he knew to also be addicted to pain killers.
Miller asked whether she knew someone who could sell him the
particular pills he preferred, and the acquaintance put him
in touch with her supplier, Kenneth Knox. Knox did not have
the pills Miller wanted, but he said he would try to find
them. Knox asked around, and his friend Freddie Lawrence put
him in touch with another man, who Lawrence called
"L.A." (the man identified himself to Knox as
"T.T."). He had the pills and would sell them to
Miller. For arranging the deal, Knox would be paid a small
amount of marijuana (or, depending on the testimony,
synthetic marijuana). Miller's friend, Collin Cooper,
agreed to come along. A meeting was arranged, but the dealer
did not show. Later that same day, however, the various
parties to the deal resumed contact and agreed to meet near
University Street in Gautier.
Miller, Knox, and Cooper drove together to University Street
around 8 p.m., when it was dark outside. Between them, Miller
and Cooper were holding more than a thousand dollars in cash
for the purchase. They had difficulty locating the dealer, so
Knox called him and was told the dealer was standing in front
of one of the houses on University Street and that they had
already passed him. They turned around and subsequently
encountered an African-American man standing in front of a
vehicle in a driveway on University Street. Knox saw the man
while he was still speaking to him on the phone. Cooper later
said he saw another man inside the vehicle, though Knox did
not. The man standing outside told them to pull into the
driveway, and Miller complied. Knox got out and spoke to the
man, who asked whether they had the money and how many pills
they wanted to buy. Knox asked to see the pills first, which
prompted the man to draw a pistol. Knox warned Miller and
Cooper that it was a robbery, and he fled on foot. The man
attempted to take Miller's money as Miller put the
vehicle into reverse and backed out of the driveway. The man
pursued, and as Miller began driving forward, the man shot
Miller through the driver's side window. Mortally
wounded, Miller lost control of the vehicle, and it crashed
into a fence. The shooter fled.
Cooper got out of the vehicle and initially denied being
present during the shooting. Cooper explained at trial that
he had had prior run-ins with the law and was concerned that
his involvement would lead to him being imprisoned.
Eventually, both Cooper and Knox identified Demorst as the
shooter. Knox testified at trial that he had previously met
Demorst at some point in the past, but had not realized it at
the time of the drug deal. Phone records indicated that a
cell phone in Demorst's name had been in frequent contact
with Knox and Lawrence throughout the day of the murder,
including calls with Knox moments before the shooting and
numerous calls with Lawrence less than ten minutes
later. Phone records also corroborated Knox's
testimony that Demorst had called him after the murder and
warned him not to speak to the police. Finally, the
State introduced jailhouse recordings of phone calls
involving Demorst from the week or so after he was arrested.
In the recordings, Demorst appeared to rehearse an alibi
defense with his girlfriend and suggested she pay a man to
provide him with another alibi. Demorst also mentioned a
large loss he had incurred shortly before being arrested,
apparently from gambling, which he referred to as his
Demorst did not testify at trial, but he did testify before
the grand jury and gave an interview to police investigators,
and these were entered into evidence at the trial. Demorst
denied not only the murder, but the drug deal as well. Of the
participants, Demorst claimed only to know Lawrence, and not
well. Demorst claimed to have been with a mechanic or his
"friend girl" (who later became his
girlfriend) at the time of the murder. At trial, the
defense produced the girlfriend's mother, who testified
that she had seen Demorst at her home, some distance from the
shooting, a short time before it happened. Demorst also
claimed that he used a different cell phone from the one in
his name that was linked to the deal, and - somewhat
inconsistently - that his phone had been broken at the time.
Demorst was convicted of capital murder, and he appeals.
Phillip W. Broadhead, clinical professor and director of the
University of Mississippi School of Law Criminal Appeals
Clinic, was appointed as Demorst's appellate counsel.
Third-year law students under Professor Broadhead's
supervision were appointed as special counsel pursuant to the
Mississippi Law Student Limited Practice Rule. Darian R.
Etienne and Reginald Lewis assisted in the preparation of
Demorst's brief, and Kaeley N. Gemmill and William H.
Holley presented oral argument.
Witness Identifications - Plain Error
Demorst contends that the trial court committed plain error
in failing to sua sponte suppress the in-court and
out-of-court identifications of Demorst as the shooter by the
two eyewitnesses, Knox and Cooper, based on what Demorst
contends were overly suggestive identification procedures.
The record reflects that Demorst made no motion to suppress
the identifications and no contemporaneous objections to the
in-court identifications - in fact, Demorst was the one who
brought out testimony regarding Knox's somewhat equivocal
out-of-court identification of him. "[I]ssues not
presented to the trial court for lack of ...