State of Tennessee v. Demarco Waters

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 3, 2016

STATE OF TENNESSEE v. DEMARCO WATERS

Appeal from the Criminal Court for Shelby County
No. 13-01885 James M. Lammey, Jr., Judge

No. W2015-01366-CCA-R3-CD - Filed August 10, 2016

The defendant, DeMarco Waters, was convicted by a Shelby County Criminal Court jury
of premeditated first degree murder; three counts of attempted first degree murder, Class
A felonies; attempted second degree murder, a Class B felony; and four counts of
employing a firearm during the commission of a dangerous felony, Class C felonies. The
defendant was sentenced to an effective term of life plus seventy-seven years. On appeal,
the defendant argues that the evidence is insufficient to sustain his convictions and that
the trial court abused its discretion in ordering consecutive sentencing. After review, we
affirm the judgments of the trial court. However, we remand for entry of a corrected
judgment in Count 6 to indicate that the conviction offense is a Class A felony.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
and Remanded for Entry of Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and J. ROSS DYER, JJ., joined.

Stephen C. Bush, District Public Defender; Harry E. Sayle, III (on appeal); Mary K. Kent
and William N. Muller (at trial), Assistant Public Defenders, for the appellant, DeMarco
Waters.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Paul Hagerman and Colin A. Campbell,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS
 The defendant was indicted for the premeditated first degree murder of Marvin
Cole; the attempted premeditated first degree murders of Edris Conley, Justin Buckner,
Avan Hardy, Roderick Conley, and Tevin Wright; and five counts of employing a firearm
during the commission of a dangerous felony – the attempted murder counts, arising out
of his entering Roderick Conley’s apartment and firing at the occupants.1

Mary Cole, Marvin Cole’s mother, testified that her son was twenty-one years old
when he was killed, and that he and the defendant had been friends since junior high
school.

Roderick Conley testified that he lived in the Eldorado Apartments in September
2012. On September 4, he was playing dominos in his apartment with the defendant,
Avan Hardy, Justin Buckner, Edris Conley, Tevin Wright, and Marvin Cole. The
defendant went outside to make a phone call and, when he came back in, Marvin Cole,
who was larger than the defendant, would not move his chair out of the way to let the
defendant pass. An argument ensued between the two men, and the entire group went
outside to continue the argument. It was heated but did not become physical. Things
calmed down after five or ten minutes, and the group went back inside. However, the
group began ribbing the combatants, and the defendant kept saying, “[T]hat ain’t right.”
The defendant eventually left to buy more beer, vowing not to share it.

Roderick Conley testified that the rest of the group left to buy more beer shortly
after the defendant. They saw the defendant at the store, surrounded by some other men
Roderick did not know. They bought a twelve-pack of beer and returned to Roderick’s
apartment. Roderick heard a knock on the door about ten to twenty minutes after the
group got back to the apartment. Roderick went to the bathroom and, when he came out,
the defendant was in the house. In an “all business” manner, the defendant approached
Marvin Cole on the couch where he was sitting, said something like, “I see you
st[r]apped up, huh,” and then shot him. Everyone in the house scattered to take cover;
Roderick balled up in the corner. Roderick recalled hearing the defendant say, “I need
one more round,” as he left after the shooting.

Roderick Conley testified that, other than the defendant, the only other person in
the room with a gun was Marvin Cole. He said that Mr. Cole’s gun “was originally [the
defendant]’s gun. That’s what the whole altercation supposed to have been about[.]”
However, Roderick said that Mr. Cole never took the gun out of his pocket. Roderick
owned a twenty-gauge, single-barrel shotgun, but it was unloaded and in his bedroom

1
Because there are a number of victims in this case, we will refer to each by name instead of
designating anyone “the victim.” Additionally, because two of the witnesses share the same surname, we
will refer to them by first name only at times to prevent confusion. We mean no disrespect by this
practice.
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under his bed during the incident. Roderick recalled that, in addition to Mr. Cole, Justin
Buckner was shot three times and Edris Conley was shot once or twice.

Avan Hardy testified that he was at Roderick Conley’s apartment the day of the
shooting, and he testified similarly to Roderick with regard to the events of the evening.
Mr. Hardy elaborated that there “was tension in the air” between the defendant and Mr.
Cole over a .32 caliber pistol that Mr. Cole had taken from the defendant about a week
before and that Mr. Cole had in his possession that night. Mr. Hardy recalled that, when
they were at the store buying beer, he heard the defendant say, “I need a strap, ASAP,”
which Mr. Hardy understood to mean a gun. Mr. Hardy also recalled that when they
returned to Roderick’s apartment, the defendant knocked on the door, they asked who it
was, and the defendant responded, “Killer.” Mr. Hardy heard the defendant ask Mr. Cole
if he had “some more shots” just before shooting him. Mr. Hardy stated that the
defendant “[s]hot at everybody” in the apartment and that he was afraid. Mr. Hardy
described the defendant’s demeanor as “calm” when he walked toward the couch to shoot
Mr. Cole. After the defendant stopped shooting at everyone, Mr. Hardy heard him yell,
“I need another round,” before running off.

Justin Buckner also testified similarly with regard to the events of the evening.
Mr. Buckner recalled that the initial argument between the defendant and Mr. Cole that
occurred when the defendant returned to the apartment after using the phone involved
“tussling” and “wrestling,” not just words. Mr. Buckner also recalled that, when the
group later encountered the defendant at the store while buying beer, the defendant was
upset about his dispute with Mr. Cole and would not let it go. Mr. Buckner also
elaborated about what occurred when someone knocked on the apartment door after they
returned from buying beer. He said that he asked who was at the door and the person
knocking responded, “Killer.” Mr. Buckner said, “Killer?” The person knocking
responded, “Yeah, Killer.” Mr. Buckner responded, “Man, you better stop playin’ for to
get shot th[r]ough the door.” At that time, someone else opened the door, and they saw it
was the defendant. Mr. Buckner stated that the defendant entered the room and walked
toward the couch, asking the group if they had gone to get more guns. They answered,
“No,” and the defendant pulled out his gun and started shooting. When the defendant
started shooting, Mr. Buckner jumped up and tried to get away, but the defendant shot
him three times. Mr. Buckner was hospitalized for over a month.

Tevin Wright also testified similarly with regard to the events of the evening. Mr.
Wright elaborated that the defendant was calm throughout the entire incident, from the
time he entered the apartment, fired the shots, and then left. Mr. Wright said that no one
threatened the defendant prior to the defendant’s starting shooting. Mr. Wright stated
that he had never met the defendant before that night and that the defendant never pointed
his gun at him during the incident.
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 Edris Conley2 also testified similarly with regard to the events of the evening.
Edris recalled hearing a knock on the door and the person knocking responding that it
was, “Killer.” Edris further recalled that one of the other men in the apartment said,
“You better stop playing, Killer, or we’re gonna shoot through the door.” The person
knocking then responded, “No, I’m just playin’ – this [the defendant].” Edris said that he
was sitting on the couch next to Mr. Cole listening to music when the defendant entered
the room. Edris noticed the gun and looked up about the time the defendant started
shooting. The defendant first shot Mr. Cole and then started shooting around. Edris tried
to move away but was shot in the leg. He said that the defendant fired several times,
looked around, and then walked out, expressing the need for another round. Edris
underwent eight surgeries and had a metal rod placed in his leg, which makes his leg stiff
and causes his knee to lock up. He has foot drop and ankle contractions. Edris said that
he had never met the defendant prior to the shooting.

Gary Nelson, an EMT with the Memphis Fire Department, testified concerning
what he encountered, as well as his actions, when he responded to the scene of the
shooting.

Officer Lee Walker, a crime scene technician with the Memphis Police
Department, photographed the scene and collected evidence. Officer Walker observed
dominos on the kitchen table and casings and projectiles around the living room. He
found a total of seven forty-five caliber shell casings throughout the apartment. A thirty-
two caliber revolver was found in the pants pocket of Mr. Cole, the murder victim. No
spent thirty-two caliber bullets were found at the scene, although outside the apartment
Officer Walker found a live thirty-two round. A bullet fragment was found under Mr.
Cole’s body. Officer Walker located a twenty-gauge shotgun under the mattress in the
bedroom.

Dr. Karen Chancellor, Chief Medical Examiner for Shelby County, testified that
Mr. Cole’s cause of death was a gunshot wound to the head. A major part of the bullet
and some bullet fragments were recovered from Mr. Cole’s head. It could not be
determined from what range the shot had been fired, and Dr. Chancellor could not say
what position Mr. Cole’s body was in when hit.

Cervinia Braswell, a forensic firearms examiner with the Tennessee Bureau of
Investigation, determined that the forty-five caliber shell casings recovered from the
scene were fired from the same weapon. She also determined that the bullets and bullet
fragments recovered from the individuals who were shot were all forty-five caliber

2
Edris Conley is of no relation to Roderick Conley.
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bullets, but due to the bullet material she could not conclusively say they were shot from
the same weapon.

Jonathan Davis, a clerk in the Shelby County Criminal Court Clerk’s Office,
authenticated an envelope addressed to the criminal court with a return address of the
defendant at the jail.

Officer Odell Underwood, an employee of the Shelby County Jail, testified that a
letter mailed by the defendant was returned to the jail as undeliverable. As part of his
duties, he opened and read the letter, and he realized it was a request to have people
assaulted or killed. Officer Underwood forwarded the letter to the homicide bureau
because the purported sender, the defendant, had a murder case pending.

Detective Robert Wilkie with the Memphis Police Department testified that all of
the surviving victims identified the defendant as the shooter from photographic arrays.
Detective Wilkie interviewed the defendant, and the defendant gave a statement denying
shooting anyone. The defendant claimed that the victims had him confused with
someone else as he was with his aunt at the time of the shooting. Detective Wilkie
interviewed the defendant’s aunt, and she said that she did not see the defendant after
2:00 p.m. on the day in question and was therefore not with him at the time of the
shooting. Three or four months later, Detective Wilkie also reviewed the letter that was
mailed by the defendant but returned to the jail. Detective Wilkie said that the letter
requested that someone ask “Fred,” an individual who lived in the apartment next door to
the scene of the shooting, to let him know when the victims were there so that a “surprise
party” for the witnesses could be implemented to keep them from testifying. Detective
Wilkie took it as a request to kill the witnesses before the defendant’s preliminary
hearing.

Michael Colburn, a crime scene officer, lifted fingerprints from the
aforementioned letter purported to have been mailed by the defendant. Martin Miller, a
fingerprint examiner, testified that a fingerprint found on the letter matched the
defendant.

Following the conclusion of the proof, the jury acquitted the defendant of Counts
10 and 11, the offenses against Tevin Wright. The jury convicted the defendant, as
charged, of the remaining counts with the exception of Count 2, in which he was
convicted of the lesser-included offense of the attempted second degree murder of Edris
Conley rather than attempted first degree murder.

The defendant was sentenced to life imprisonment on the murder conviction. The
court imposed an eight-year sentence on the attempted second degree murder conviction,
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fifteen years on each of the attempted first degree murder convictions, and six years on
each of the convictions for employment of a firearm during the commission of a
dangerous felony. Finding that the defendant was a dangerous offender, the court
ordered that all of the sentences be served consecutively for an effective term of life plus
seventy-seven years.

ANALYSIS

I. Sufficiency of the Evidence

The defendant first argues that the evidence is insufficient to support his
convictions for the premeditated first degree of Marvin Cole or the attempted first degree
murder of Roderick Conley.

In considering this issue, we apply the rule that where sufficiency of the
convicting evidence is challenged, the relevant question of the reviewing court is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
6
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so
that on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

First degree murder is defined as “[a] premeditated and intentional killing of
another[.]” Tenn. Code Ann. § 39-13-202(a)(1). “Premeditation” is defined in our
criminal code as

an act done after the exercise of reflection and judgment. “Premeditation”
means that the intent to kill must have been formed prior to the act itself. It
is not necessary that the purpose to kill pre-exist in the mind of the accused
for any definite period of time. The mental state of the accused at the time
the accused allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.

Id. § 39-13-202(d).

Whether premeditation exists in any particular case is a question of fact for the
jury to determine based upon a consideration of all the evidence, including the
circumstantial evidence surrounding the crime. See State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Pike, 978
S.W.2d 904, 914 (Tenn. 1998). Our supreme court has listed a number of factors which,
if present, may support the jury’s inference of premeditation. Among these are the
defendant’s declaration of an intent to kill the victim; the use of a deadly weapon upon an
unarmed victim; the establishment of a motive for the killing; the particular cruelty of the
killing; the infliction of multiple wounds; the defendant’s procurement of a weapon,
preparations to conceal the crime, and destruction or secretion of evidence of the killing;
and the defendant’s calmness immediately after the killing. State v. Jackson, 173 S.W.3d
401, 409 (Tenn. 2005); State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v.
Leach, 148 S.W.3d 42, 54 (Tenn. 2004); State v. Nichols, 24 S.W.3d 297, 302 (Tenn.
2000); Bland, 958 S.W.2d at 660.

In cases where the defendant has been charged with the attempted commission of
a crime, there must be evidence that the defendant acted “with the kind of culpability
otherwise required for the offense” and acted “with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result without further
conduct on the person’s part.” Tenn. Code Ann. § 39-12-101(a), (a)(2).

The defendant claims there was no evidence that he came back to the apartment
with the intent to kill Marvin Cole. He asserts it was apparent that he was joking when
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he announced himself as “Killer.” He further asserts that he knew Mr. Cole was armed
and that he did not shoot Mr. Cole until Mr. Cole started to get up from the couch. He
summarizes that “[t]here was no evidence that up to that moment he intended anything
more tha[n] to defend himself and recover his property from Mr. Cole, who was armed.”

In the light most favorable to the State, however, the proof shows that the
defendant was motivated by his anger at how he believed he was disrespected by Mr.
Cole and the other men in the group before he left the apartment. After leaving the
apartment, the defendant was overheard at a store saying he needed a “strap,” meaning a
gun. When the defendant returned to the apartment and was welcomed inside, he did not
display his gun until he went directly to Mr. Cole and shot him, which indicates use of
the element of surprise to keep the victims from defending themselves. The defendant
then turned his attention to the others in the room and began firing at them. When the
defendant ran out of ammunition, he was overheard saying, “I need another round,” as he
left the apartment. This evidence shows that the defendant had a motive, procured a
weapon prior to the attack, was calm in the moments before he began firing, used the
element of surprise to keep the victims from defending themselves, only stopped his
attack because he ran out of ammunition, and failed to render aid to any of the wounded
after the shooting. This evidence is sufficient for a rational trier of fact to find that the
defendant’s killing of Mr. Cole was premeditated.

The defendant also claims that there was no evidence that he shot at or threatened
Roderick Conley, who was balled up in a corner until the shooting stopped. The proof
shows that the defendant began firing around the room after murdering Mr. Cole, and
everyone in the room scrambled for cover. Mr. Conley balled up in a corner of the room
because he was afraid of being shot. A rational trier of fact could infer from the
defendant’s actions that he was intent on killing as many people as he could after
shooting Mr. Cole and that it was only by sheer luck and the defendant’s running out of
ammunition that Mr. Conley avoided being shot, not because of any lack of intent on the
defendant’s part. The defendant clearly did not want to leave any witnesses behind,
evidenced by his subsequent letter requesting for a “surprise party” for the survivors so
they would be unable to testify against him. The evidence is sufficient to support the
defendant’s conviction for the attempted first degree murder of Roderick Conley.

II. Sentencing

The defendant also argues that the trial court abused its discretion in ordering that
he serve his sentences consecutively. He asserts that the trial court based its finding
solely on the severity of the crimes of which he was convicted and that the extended
sentence is not necessary to protect the public from further criminal acts by him.

8
 The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that any one or more of the seven factors listed in Tennessee
Code Annotated section 40-35-115(b) apply, including the one the trial court found
applicable in this case – that the defendant was a dangerous offender whose behavior
indicated little or no regard for human life and no hesitation about committing a crime in
which the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4).

When the court bases consecutive sentencing upon its classification of the
defendant as a dangerous offender, it must also find that an extended sentence is
necessary to protect the public against further criminal conduct by the defendant and that
the consecutive sentences reasonably relate to the severity of the offense committed.
State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995). Our standard of review for a trial court’s order of consecutive
sentencing is abuse of discretion with a presumption of reasonableness. State v. Pollard,
432 S.W.3d 851, 859-60 (Tenn. 2013).

As an initial matter, the convictions for employing a firearm during the
commission of a dangerous felony are required by statute to run consecutively. See
Tenn. Code Ann. § 39-17-1324(e)(1).

In this case, the trial court found that the defendant was a dangerous offender. The
court noted that the defendant had some prior convictions but relied solely on the instant
offenses in deciding to impose consecutive sentencing. The court noted that the
defendant’s only motivation for the crimes was the victims’ “mak[ing] fun of him,” and
that the act of trying to shoot everyone in the apartment was “senseless” and showed
“particular malice.” The court found that the circumstances surrounding the commission
of the offenses were “particularly aggravated” and that the aggregate length of sentence
reasonably related to the defendant’s crimes. Although the trial court did not make an
explicit finding that the length of sentence was necessary in order to protect the public
from further criminal acts by the defendant, such finding was implicit in its ruling. The
record supports the trial court’s determination that the defendant was a dangerous
offender.

In any event, even if there was error in finding the defendant to be a dangerous
offender, the court appropriately imposed consecutive sentencing upon finding that the
defendant had an extensive record of criminal activity given his present convictions. This
court has repeatedly held that “[c]urrent offenses may be used in determining criminal
history for the purposes of consecutive sentencing.” State v. Carolyn J. Nobles, No.
M2006-00695-CCA-R3-CD, 2007 WL 677861, at *12 (Tenn. Crim. App. Mar. 7, 2007)
(citing State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App. 1992)); see, e.g.,
State v. Kyle Ronald Fencl, No. M2012-01265-CCA-R3-CD, 2013 WL 3976060, at *8
9
(Tenn. Crim. App. Aug. 5, 2013), perm. app. denied (Tenn. Nov. 13, 2013); State v.
Darius Jones, No. W2010-01080-CCA-R3-CD, 2011 WL 2162986, at *3 (Tenn. Crim.
App. May 26, 2011), perm. app. denied (Tenn. Sept. 21, 2011); State v. Mark Robert
Carter, No. M2007-02706-CCA-R3-CD, 2009 WL 1349206, at *10 (Tenn. Crim. App.
May 14, 2009), perm. app. denied (Tenn. Sept. 28, 2009). A trial court may impose
consecutive sentencing after finding any one of the criteria in Tennessee Code Annotated
section 40-35-115(b). The trial court did not abuse its discretion in imposing consecutive
sentences in this case.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court. However, we remand for entry of a corrected judgment in Count 6 to indicate
that the conviction offense is a Class A felony.

_________________________________
ALAN E. GLENN, JUDGE

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