Cole v. State

• Docket Number: W2023-00517-CCA-R3-ECN
• Decision Date: 28 December 2023
• Parties: DEMARCUS KEYON COLE v. STATE OF TENNESSEE
• Court: Tennessee Court of Criminal Appeals

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DEMARCUS KEYON COLE
v.
STATE OF TENNESSEE

No. W2023-00517-CCA-R3-ECN

Court of Criminal Appeals of Tennessee, Jackson

December 28, 2023

Assigned on Briefs December 5, 2023

Appeal from the Circuit Court for Madison County No. C-22-2 Donald H. Allen, Judge

The petitioner, Demarcus Keyon Cole, appeals the dismissal of his petition for writ of error coram nobis, which petition challenged his 2013 Madison County Circuit Court jury convictions for felony murder and especially aggravated robbery, arguing that he is entitled to a new trial due to newly discovered evidence. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

Demarcus Keyon Cole, Only, Tennessee, pro se (on appeal); and William Milam, Jackson, Tennessee (at hearing), for the appellant, Demarcus Keyon Cole.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant Attorney General; Jody S. Pickens, District Attorney General; and Alfred Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and MATTHEW J. WILSON, JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE

A Madison County Circuit Court jury convicted the petitioner of felony murder and especially aggravated robbery for his role in the shooting of the victim, Demetris Cole, during a robbery. See State v. Demarcus Keyon Cole, No. W2013-02850-CCA-R3-CD, 2014 WL 7269813, at *1 (Tenn. Crim. App., Jackson, Dec. 22, 2014). The trial court imposed consecutive terms of life imprisonment and 20 years. Id.

According to the evidence presented at trial, the petitioner, the victim, and Ms. Ebony Jenkins were using drugs and drinking beer at the petitioner's apartment during

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the night of October 28, 2011, and the early morning hours of October 29 while the petitioner's young son slept in another room. Id. During the course of the night, some of the petitioner's neighbors purchased marijuana from the victim. Id. The petitioner left the apartment at approximately 1:00 a.m., and at around 3:30 or 4:00 a.m., the victim left the apartment to go to a store. Id. Ms. Jenkins followed the victim outside to get a cigarette from him, and she saw the petitioner and two other men in the petitioner's truck. Id. The victim briefly spoke to the petitioner before leaving. Id.

At approximately 3:53 a.m., the petitioner called his then-girlfriend, Kyneshia Williams, and asked her to "set up [the victim] at a store in Jackson so that [the petitioner] could rob him," and the petitioner told her that he hoped to obtain "dope and money." Id. at *5. Ms. Williams refused to participate, and the petitioner asked whether she was certain and instructed her to "let me know so I can make other plans." Id.

Ms. Jenkins testified that after the victim returned to the petitioner's apartment, he received a telephone call from someone who wanted to purchase marijuana, and the victim began weighing marijuana in preparation for the transaction. Id. at *1. The petitioner and two other men entered the apartment and walked to the back of the apartment as the victim asked which of them wanted the marijuana. Id. One of the men returned to the living room, announced the robbery, and pointed a gun at the victim, while the other man ordered Ms. Jenkins to cover her head with blankets. Id. Ms. Jenkins heard one of the men demand that the victim empty his pockets followed by what she believed to be the man beating the victim. Id. The men called the petitioner from the back, and the petitioner said, "I got a son, I got a son." Id. at *2. Ms. Jenkins stated that the petitioner did not sound sincere, and she believed he was feigning shock at the events. Id. She heard one of the men order the petitioner and the other man to leave, followed by the sound of people exiting the apartment. Id. She then heard a total of five gunshots, and once the remaining man exited the apartment, she removed the blankets from her head to find the victim lying on the floor and covered in blood. Id. She then called 9-1-1. Id.

The victim sustained gunshot wounds to his head, upper thorax, chest, abdomen, and hip. Id. He was transported to a hospital where he succumbed to his injuries on October 31, 2011. Id. Officers recovered five .32 caliber shell casings and one spent .32 caliber bullet in the living room of the apartment. Id. A firearms expert determined that the five .32 caliber spent shell casings were fired from the same gun and that the spent .32 caliber bullet and two bullets from the victim's body were fired from the same gun. Id. Officers did not release any information about where the victim had been shot or what caliber firearm had been used. Id. at *4. However, Ms. Williams testified that on the Sunday following the shooting, the petitioner came to her home and stated that the victim had been shot five times with a hollow point .32 caliber firearm, including twice in his head, once in his arm, once in his chest, and once in another location. Id. at *5.

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The petitioner subsequently gave a statement to the police claiming that he also was a victim of the robbery, had been forced at gunpoint to drive the perpetrators from the scene, and was not shot because he had his young son with him. Id. at *3. Ms. Williams testified that when she spoke to the petitioner following the shooting, he did not mention being robbed or kidnapped by the shooters. Id. at *5.

Officers processed the petitioner's vehicle and found a green and yellow jacket in the front passenger seat, which the petitioner claimed belonged to him. Id. at *4. A store surveillance photograph taken at 2:56 a.m. prior to the shooting showed the victim wearing a green and yellow jacket prior to his death, and the victim's mother testified that she and her family searched for the jacket following the victim's death but were unable to find it. Id. at *4-5. The petitioner had his cell phone in his pocket, but all incoming and outgoing calls and text messages had been erased. Id. at *4. The petitioner was "extremely evasive" when asked about the erased messages and calls and gave multiple explanations, including the suggestion that the perpetrators did it. Id.

Sergeant Chris Chestnut of the Jackson Police Department ("JPD") sought another interview with the petitioner on October 31, 2011, but the petitioner called Sergeant Chestnut multiple times throughout the day and provided various reasons why he could not meet with the officer, including a claim that he had a meeting at work. Id. However, the human resource generalist at the company where the petitioner worked testified that the petitioner did not work on October 31 and that there was no record of his having drawn any pay for working on October 31. Id.

Sergeant Chestnut met with the petitioner on subsequent occasions during which the petitioner denied ever owning or possessing any firearms. Id. A few weeks after the meetings, the petitioner informed Sergeant Chestnut that following their October 29 meeting, he returned to his apartment and realized that two firearms were missing. Id. The petitioner claimed that he did not use the firearms and had not realized that the firearms were in his apartment until after he noticed that they were missing. Id. However, Ms. Williams testified that the petitioner previously had shown her a .40 caliber firearm and a .32 caliber firearm that he kept in his apartment. Id. at *5. Officers retrieved photographs from the petitioner's cell phone that appeared to show two different firearms inside the petitioner's apartment, one of which was a medium to large caliber semiautomatic firearm and the second of which was a small caliber firearm consistent with a .22 caliber, .25 caliber, or .32 caliber firearm. Id. at *4.

The State also presented the testimony of LeGraine Poston, who had a prior conviction for attempted aggravated burglary and spoke to the petitioner while they were

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incarcerated at the Madison County Jail in February 2013. Id. at *5. Mr. Poston testified that

the [petitioner] said that he had set the victim up for a robbery because he wanted to "get high," that all that was supposed to happen was a robbery but that things had not gone according to plan, and that he did not want to take the blame for something that someone else had done. [Mr Poston] said he waited a couple of months to contact Sergeant Chestnut to tell him what he had learned because it was difficult and dangerous to contact the police while in jail. On cross-examination, he was unable to say why the [petitioner] had picked him to confide in out of all the inmates that shared their pod. On redirect, he testified that in his statement to Sergeant Chestnut, he said that the [petitioner] told him that all the victim had to do was to give up his money.

Id. Curtis Blake Bailey, another inmate at the jail, confirmed seeing the petitioner and Mr. Poston conversing. Id.

The petitioner's judgments of conviction were entered on November 15, 2013.^[1] This court affirmed the petitioner's convictions on direct appeal. See Demarcus Keyon Cole, 2014 WL 7269813, at *1. The petitioner subsequently filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. The post-conviction court denied the petition, and this court affirmed the...