Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis
1522-CR00176-01, Honorable David L. Dowd Judge.
M. GAERTNER JR. JUDGE.
D. Demery (Defendant) appeals his convictions and sentences
for murder in the second degree, armed criminal action, and
two counts of unlawful use of a weapon, arguing (1) the State
failed to disprove Defendant acted in self-defense and (2)
there was insufficient evidence to support the jury's
verdict of murder in the second degree and armed criminal
action. We affirm.
evidence at trial in the light most favorable to the judgment
was as follows. Defendant and Tameka Whalen (Whalen) dated
for eight months in 2013 and 2014. As of January 14, 2015,
they were no longer together. Nonetheless, Defendant visited
Whalen a few times each week. Whalen was pregnant by
months prior to January 14, 2015, Leon Jason Rivers (Rivers)
had reconnected with Whalen and-for the first time-met D. R.,
his thirteen-year-old biological son. Rivers and Whalen made
arrangements for Rivers to get to know D.R.; Rivers and D.R.
had met three times prior to January 14, 2015.
January 14, 2015, Rivers visited Whalen and D.R. at their
home. Whalen shared the house with a total of eight children
and grandchildren. Rivers and Whalen were in the laundry
room, located at the back of the house, washing clothes and
smoking marijuana. At one point, D.R. left the house through
the front door to take out the trash.
D.R. was taking out the trash, Defendant entered the house
through the front door and spoke to Whalen's children and
grandchildren. Whalen recognized Defendant's voice and
began to leave the laundry room. When Defendant saw Whalen
and Rivers in the laundry room, he turned around and walked
back toward the front door. Whalen followed Defendant and
entered the kitchen. Defendant turned back around and pulled
a silver revolver with a white handle from his pocket,
placing it against Whalen's head. The Defendant stated,
"Bitch, I'll kill him. I'll kill you, him, and
myself." The children started running everywhere.
the revolver placed against her head, Whalen asked Defendant
not to shoot. Rivers tried to leave the house, but Defendant
argued with Rivers. Whalen broke away from Defendant and ran
out of the house. At this point, D.R. was walking back toward
the house. Whalen screamed, "Oh, your daddy got a gun to
his head." While on the front porch, Whalen told D.R. to
tell Defendant, "Don't shoot my dad." Whalen
then fled to a neighbor's house, called the police, and
hid in the closet.
D.R. entered the house and made his way toward the back
laundry room. D.R. saw Defendant and Rivers talking.
Defendant had the silver revolver with a white handle pointed
at Rivers. D.R. told Defendant that Rivers was his
"daddy." Defendant and Rivers continued talking and
moved closer to the front door. The revolver remained trained
on Rivers. Defendant remained closest to the door. Defendant
told Rivers, "Get on your knees." Rivers then
grabbed a glass ashtray and tried to knock the revolver from
Defendant's hand three times. During the third attempt,
the revolver fired. Defendant fled the scene.
officers responded to the scene. Based on the information
gathered, police officers identified Defendant as the
probable shooter. The next day, police officers arrested
Defendant while in possession of a .38 caliber revolver with
a pearl handle and nine rounds of .38 ammunition. Forensic
experts determined that Rivers died from a single gunshot
wound to the chest and that Defendant's revolver fired
the bullet that killed Rivers.
State charged Defendant with murder in the first degree,
armed criminal action, and two counts of unlawful use of a
weapon. Defendant testified at trial. He acknowledged owning
the revolver and admitted bringing it fully-loaded to
Whalen's house. Defendant testified he drew the revolver
prior to Rivers picking up the ashtray because Rivers was
"coming at" him in an aggressive manner. Defendant
stated he was afraid that Rivers, who was physically larger
than Defendant, would hit him with the ashtray, take the
revolver, and kill him. Defendant stated he shot Rivers while
Rivers was swinging the ashtray.
trial court instructed the jury on murder in the first degree
along with the lesser included charges of murder in the
second degree, felony murder in the second degree, and
involuntary manslaughter. Because Defendant injected the
issue of self-defense, the trial court also instructed the
jury on self-defense. The jury found Defendant guilty of
murder in the second degree, armed criminal action, and two
counts of unlawful use of a weapon. The trial court sentenced
Defendant as a prior and persistent offender, as follows:
Count I life imprisonment for murder in the second degree,
Count II thirty years imprisonment for armed criminal action
to be served concurrent with Count I, and ...