Golphin v. Branker

• Decision Date: 07 March 2008
• Docket Number: No. 07-8.,07-8.
• Citation: 519 F.3d 168
• Parties: Tilmon C. GOLPHIN, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

519 F.3d 168

Tilmon C. GOLPHIN, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 07-8.

United States Court of Appeals, Fourth Circuit.

Argued: December 4, 2007.

Decided: March 7, 2008.

ARGUED: Kenneth Justin Rose, Center For Death Penalty Litigation, Durham, North Carolina, for Appellant. Jonathan Porter Babb, Sr., Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas H. Johnson, Jr., Gray, Johnson, Blackmon, Lee & Lawson, L.L.P., Greensboro, North Carolina, for Appellant. Roy Cooper, Attorney General, Raleigh, North Carolina, for Appellee.

Before WILLIAMS, Chief Judge, and WILKINSON and MICHAEL, Circuit Judges.

Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge WILKINSON and Judge MICHAEL joined.

OPINION

WILLIAMS, Chief Judge:

On September 23, 1997, at approximately 12:38 p.m., Deputy Kelly Curtis of the Cumberland County, North Carolina, Sheriff's Department arrived at Exit 52 on Interstate 95 ("I-95") near Fayetteville, North Carolina to provide backup for a traffic stop. Once at the scene, Deputy Curtis saw that Trooper Lloyd E. Lowry of the North Carolina Highway Patrol and Deputy David Hathcock of the Cumberland County Sheriff's Department had been shot, and he radioed his dispatcher "Officers down. Officers down." State v. Golphin, 352 N.C. 364, 533 S.E.2d 168, 185 (2000). A North Carolina jury convicted Tilmon Charles Golphin Jr. ("Tilmon") and his younger brother Kevin Salvador Golphin ("Kevin") of the murders of Trooper Lowry and Deputy Hathcock. Tilmon brings this 28 U.S.C.A. § 2254 (West 2006) proceeding, raising two issues regarding his underlying convictions. Because we conclude that the Supreme Court of North Carolina did not unreasonably apply the clearly established federal law of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that any unreasonable application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), did not have a substantial and injurious effect on the jury verdict, we affirm the district court's denial of Tilmon's § 2254 petition.

I.

A.

In fall of 1997, Tilmon and Kevin, aged 19 and 17, were living with their grandparents in Greeleyville, South Carolina, having left their mother's home in Richmond, Virginia. On the morning of September 23, 1997, Tilmon and Kevin caught a ride with their cousin Demetric Mack into the downtown area of nearby Kingstree, South Carolina. During the drive, Mack noticed that Kevin was concealing a firearm that was later determined to be a Russian-made SKS semi-automatic rifle in a white towel. Tilmon was not armed and was carrying a book bag.

Around 10:00 a.m., the brothers entered the offices of Financial Lenders, a finance company located in downtown Kingstree. Kevin entered brandishing the SKS rifle, pointed it at one of the employees, Ava Rogers, and demanded her car keys. She gave him the keys, and the brothers then ordered Rogers and a second employee into the bathroom at the back of the store. Kevin followed the women into the bathroom and told them to turn around and face the wall. Both women reported hearing clicking sounds from the rifle while they stared at the wall. After several minutes of silence, the women then heard a vehicle leave the parking lot located behind the building; they exited the bathroom and called 911. Rogers quickly discovered that someone had removed her wallet from her purse, and that her car, a 1996 dark green Toyota Camry, was missing. The Kingstree Police Department responded to the 911 call, and after obtaining a description of the suspects, issued a "BOLO"¹ for the suspects and the vehicle. The license plate and vehicle description were also entered in the National Crime Information Center ("NCIC") database.

That day, Trooper Lowry was patrolling northbound I-95 in Cumberland County, North Carolina. At approximately 12:30 p.m., Trooper Lowry stopped a dark green Toyota Camry at Exit 52 on I-95 because the driver was not wearing his seatbelt. Lowry approached the driver's side of the vehicle and instructed the driver, Kevin, to sit in the front seat of his patrol car while he performed a routine vehicle registration check. Although Kevin was driving the car, he gave Trooper Lowry Tilmon's South Carolina driver's license. After Trooper Lowry sent the registration check, the dispatcher responded with a coded message that the vehicle was stolen. Trooper Lowry requested assistance and told Kevin to exit the vehicle and place his hands on the patrol car. Trooper Lowry then pointed his service weapon at Tilmon, who was in the passenger seat of the Camry. By this time, Deputy Hathcock had arrived at the scene and parked his patrol vehicle parallel to Trooper Lowry's vehicle. Deputy Hathcock then made his way to the passenger side of the Camry and removed Tilmon from the car. Deputy Hathcock patted Tilmon down and began walking him toward Trooper Lowry's vehicle.

At the same time, Trooper Lowry unsuccessfully attempted to place Kevin under arrest, but instead he and Kevin began struggling with each other. Kevin and Trooper Lowry fell to the ground, scuffling, and Trooper Lowry requested that Deputy Hathcock use his pepper spray on Kevin in an effort to subdue him. Deputy Hathcock was holding Tilmon by his left arm near the rear of the Camry at this point. Deputy Hathcock complied, sprayed Kevin, and then attempted to spray Tilmon. Before he could be sprayed, however, Tilmon knocked the canister from Deputy Hathcock's hand and ran back to the Camry, where he removed the SKS rifle from the backseat and then turned to face Deputy Hathcock. Tilmon looked Deputy Hathcock in the eye and fired the rifle, striking Hathcock several times in the abdomen and chest.

Tilmon then moved to the back of the patrol car where Trooper Lowry was on top of Kevin, still attempting to subdue him. Tilmon moved alongside Trooper Lowry and fired the rifle into his side at close range, causing Trooper Lowry to fall face-first to the ground. Tilmon retrieved Deputy Hathcock's service weapon and entered the Camry on the driver's side. Kevin, meanwhile, removed Trooper Lowry's service weapon, and while Trooper Lowry was still lying face down in the grass, shot him multiple times in the back. Afterwards Kevin ran to the passenger side of the Camry, entered the car, and sped away from the scene with Tilmon.

Several passing motorists witnessed these events, including Dana Blecke, a former emergency medical technician who passed the scene traveling southbound and saw someone lying in the grass in front of a highway patrol vehicle. She also witnessed a black male running toward the driver's side of a car parked in front of the patrol vehicle. Blecke slowed her vehicle, turned around in the median, and returned to the patrol car. By this point, the other car she had noticed was gone. Blecke stopped her vehicle and attended to the individual she had seen lying in the grass, who was later identified as Deputy Hathcock, and assessed that he had no pulse. Deputy Curtis soon arrived at the scene. At 12:39 p.m. Deputy Curtis radioed dispatch "Officers Down. Officers Down," and requested immediate assistance. Together Blecke and Deputy Curtis then attended to Trooper Lowry, whom they found face down in front of his vehicle. They rolled Trooper Lowry over to examine him, but unfortunately found no sign of life.

Meanwhile, Tilmon and Kevin continued northbound on I-95. Another motorist who had witnessed the roadside events, Ronald Waters, had pulled off the road, called 911, and then pulled back onto the road when he saw the dark green Camry drive past him. Waters followed the Camry as he talked to the 911 operator, relaying the vehicle's movements. Several miles later, at Exit 55, the Camry exited and Waters followed. Kevin and Tilmon drove down a small dirt road where they switched drivers and removed the Camry's South Carolina license plate. Although Waters did not pursue them down this road, he stopped on the on-ramp and monitored their progress while continuing to speak with the 911 operator. The brothers then drove the Camry to a bridge overlooking I-95 before turning around and driving toward Waters. When Waters saw the barrel of a rifle pointing out of the Camry, he dropped his phone, ducked down in his seat, and hit the accelerator. He heard three shots, but he was unable to flee the scene because the shots had disabled his vehicle. Waters kept his head down until he heard an engine revving. Believing that the Camry had left, Waters raised his head. He then saw the Camry almost parallel with his vehicle, no more than six feet away, with Tilmon pointing the rifle at him through the Camry's passenger window. Tilmon smiled at him and then pulled the trigger, but the rifle clicked and did not fire. Tilmon stopped smiling, and the Camry sped away. Waters was left physically unharmed.

After their encounter with Waters, Tilmon and Kevin reentered I-95 at Exit 55 heading north. A high speed chase began at Exit 65, where a highway patrol vehicle attempted to intercept the Camry. The chase continued at speeds approaching 120 miles per hour until Exit 71, when Kevin attempted to exit, missed the turn, and rolled the car over an embankment where it landed on its wheels. Tilmon and Kevin ran from the vehicle into an adjacent wooded area. Officers from the Harnett County Sheriff's Department, the Cumberland County Sheriff's Department, the Dunn Police Department, and the North Carolina Highway Patrol immediately began searching the area. Both Tilmon and Kevin were captured shortly thereafter. Deputy Hathcock's weapon, a Glock 9-millimeter handgun, was found beside Tilmon when he was arrested; Trooper Lowry's weapon, a Beretta .40-caliber handgun, was...