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Demorst v. State

Court of Appeals of Mississippi

June 20, 2017

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
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/04/2015

         JACKSON 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

          BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.

          FAIR, J.

         ¶1. 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.

         FACTS

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.[1] Phone records also corroborated Knox's testimony that Demorst had called him after the murder and warned him not to speak to the police.[2] 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 "downfall."

         ¶5. 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[3]) 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.

         ¶6. 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.

         DISCUSSION

         1. Witness Identifications - Plain Error

         ¶7. 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 ...


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