State v. Kelliher

• Decision Date: 06 October 2020
• Docket Number: No. COA19-530,COA19-530
• Citation: 849 S.E.2d 333
• Parties: STATE of North Carolina v. James Ryan KELLIHER, Defendant.
• Court: North Carolina Court of Appeals

849 S.E.2d 333

STATE of North Carolina

v.James Ryan KELLIHER, Defendant.

No. COA19-530

Court of Appeals of North Carolina.

Filed: October 6, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for Defendant.

McGEE, Chief Judge.

James Ryan Kelliher ("Defendant"), following a troubled early life marked by physical abuse and substance use, participated in a robbery at age 17 that ended with the murders of a man and his pregnant girlfriend. Defendant was sentenced to two consecutive mandatory punishments of life without parole ("LWOP"). Following the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012), and the General Assembly's enactment of N.C. Gen. Stat. § 15A-1340.19A, et seq. in response, Defendant sought and received a resentencing hearing. At resentencing, the trial court determined that mitigating factors outweighed the circumstances of the offenses, concluded Defendant was neither "incorrigible" nor "irredeemable," Graham v. Florida , 560 U.S. 48, 72, 75, 130 S.Ct. 2011, 2028–29, 2030–31, 176 L. Ed. 2d 825, 844, 846 (2010), and resentenced him to two consecutive sentences of life with parole. Under the terms of these sentences, Defendant will not be eligible for parole until he has served 50 years in prison, placing his earliest possible release at age 67. Defendant now appeals, arguing that the consecutive sentences constitute de facto LWOP in violation of the Eighth Amendment and Article I, Section 27 of the North Carolina Constitution. We agree with Defendant and reverse and remand for resentencing.

I. FACTUAL AND PROCEDURAL HISTORY

A. Defendant's Early Life

Defendant was born in 1984 as the youngest of three siblings. Though he had good relationships with his mother and older sisters, Defendant's father physically abused him during his childhood. Defendant began abusing substances at an early age; he began drinking alcohol at age 13, was drinking daily and using marijuana at age 15, and was under the continuous influence of some combination of alcohol, marijuana, ecstasy, acid, psilocybin, and cocaine at age 17. Defendant attempted suicide on three occasions: first by overdose at age 10, again at age 17 on the night after the murders, and a final time while awaiting trial. He dropped out of school in the ninth grade, and exhibited the equivalent of a sixth grade education at age 17.

Defendant committed several thefts in his teenage years, breaking and entering into vehicles and stores after they had closed. On one occasion, Defendant stole from a video store with the help of someone named Jerome Branch. Defendant, Mr. Branch, and Joshua Ballard would "hang out" together during this time, drinking alcohol and doing drugs.

B. The Murders

In the days before the murders involved in this appeal, Mr. Ballard suggested to Defendant that they rob a cocaine and marijuana dealer named Eric Carpenter. The two discussed the matter several times, with Mr. Ballard stating in later conversations that he believed he would have to kill Mr. Carpenter in order to avoid being identified as one of the perpetrators of the robbery. Defendant offered to give a firearm he had previously stolen from a pawn shop to Mr. Ballard for this purpose. They continued to plan the robbery over future phone calls, ultimately agreeing that Defendant would serve as the driver while Mr. Ballard killed and robbed Mr. Carpenter. Mr. Branch was later included in the planning, though he was never given a defined role. Defendant also told his friend Liz Perry about the plans to rob and murder Mr. Carpenter.

Mr. Ballard arranged to purchase drugs from Mr. Carpenter behind a local furniture store on 7 August 2001. On the night of the drug deal, Defendant drove Mr. Ballard and Mr. Branch to the furniture store in Mr. Ballard's truck. They met with Mr. Carpenter when they arrived, but they spotted a marked police vehicle in the parking lot and arranged with Mr. Carpenter to move the deal to his apartment. Carpenter's girlfriend, Kelsea Helton, also lived at the apartment, and was present when the group reconvened in the apartment parking lot a short time later. Following introductions, everyone went inside the apartment and began talking civilly. Ms. Helton left the apartment briefly; when she returned,¹ the conversation turned to her pregnancy. What exactly occurred after that conversation is disputed; what is certain, however, is that when it came time to carry out the robbery, Defendant, Mr. Ballard, or both shot and killed Mr. Carpenter and Ms. Helton.

Defendant, Mr. Branch, and Mr. Ballard met in the parking lot after the shooting and split the drugs they had stolen from the apartment. The three met with another group, which included Defendant's friend, Ms. Perry, at a local park where they drank cognac and smoked marijuana laced with cocaine. At some point during the evening, Defendant told Ms. Perry about the robbery and murders. Defendant, Mr. Ballard and Mr. Branch were later arrested for the murders.

C. Defendant's Plea and Ballard's Trials

Defendant was indicted on two counts of first-degree murder, two counts of robbery with a dangerous weapon, and one count of conspiracy to commit robbery with a dangerous weapon by a grand jury on 25 March 2002. He pleaded guilty to all charges in 2004 and was sentenced to two consecutive terms of LWOP for the murders and concurrent terms of years for the robbery and conspiracy convictions.² Mr. Ballard was also charged with two counts of first-degree murder but pleaded not guilty.

Although his plea agreement did not require it, Defendant testified for the State at Mr. Ballard's trial,³ as did Ms. Perry and a friend of Mr. Ballard, Lisa Boliaris. Defendant testified that he did not shoot either Mr. Carpenter or Ms. Helton, instead stating that Mr. Ballard shot both victims. Ms. Perry offered a different account, stating that Defendant had admitted to killing the couple on the night of the murders. Ms. Boliaris gave yet another recollection of events, testifying that Mr. Ballard told her he shot Mr. Carpenter while Defendant killed Ms. Helton.⁴

Mr. Carpenter was convicted of the killings at the conclusion of his trial. However, his convictions were set aside on appeal and Mr. Ballard was granted a new trial. Ballard , 180 N.C. App. at 646, 638 S.E.2d at 481. Defendant again testified for the State on retrial, but Mr. Ballard was ultimately acquitted. The district attorney who secured Defendant's plea and prosecuted both of Mr. Ballard's trials later wrote a letter to Defendant's counsel stating that he believed Defendant "testified truthfully in both trials."

D. Defendant's Resentencing

Defendant filed a motion for appropriate relief ("MAR") in June 2013. In that motion, Defendant asserted that: (1) the United States Supreme Court's decision in Miller rendered his LWOP sentences unconstitutional under the Eighth Amendment to the United States Constitution and Article I, Section 27 of the North Carolina Constitution ; (2) resentencing was required under the recently enacted N.C. Gen. Stat. § 15A-1340.19B ;⁵ and (3) life with the possibility of parole was the appropriate sentence. The MAR was denied by the trial court on the grounds that Miller and N.C. Gen. Stat. § 15A-1340.19B did not apply retroactively. That order was subsequently reversed by order of this Court, and Defendant received a resentencing hearing on 13 December 2018.

At the resentencing hearing, Defendant and the State consented to a recitation of the facts surrounding the murders consistent with the above history. The State called the fathers of Mr. Carpenter and Ms. Helton to give victim impact statements. Both testified to the indescribable hardship of losing a child—and future grandchild—and the enduring impact on their families. Each expressed their love for their children, their dismay at the loss of life, the sadness of lost opportunities to raise their grandchild, and the lasting emotional trauma inflicted on their families. The State rested its presentation following their testimony.

Defendant presented the testimony of several witnesses in mitigation. A clinical and forensic psychologist who had examined Defendant in January and February of 2019 testified that Defendant suffered from post-traumatic stress disorder as a result of the murders. He further reported that although Defendant had a history of antisocial behavior, Defendant had ceased to exhibit those traits since he had been imprisoned in 2004. The psychologist's report detailed Defendant's childhood physical and drug abuse, his shortened education, and his efforts at self-improvement while in prison. Specifically, the report disclosed that Defendant had earned his GED and was pursuing a bachelor's degree in ministry from Southeastern Baptist Theological Seminary ("the Seminary"). Based on Defendant's history, current diagnoses, and efforts to better himself, the psychologist determined that Defendant presented a low risk of future violence and was neither incorrigible nor irredeemable. This low risk aligned with a separate assessment conducted by the Department of Public Safety.

Defendant offered additional testimony from the director of prison programs at the Seminary. He testified that Defendant was accepted into the four-year seminary program after a rigorous application process, describing him as an active and very good student. Another witness from the Seminary testified that Defendant assisted other students, was professional in his conduct, and sought to minister to inmates outside the program who were struggling with incarceration. A pastor from Redeemer Lutheran Church in Fayetteville also testified, stating he had visited with Defendant every week since his arrest and had seen a remarkable change: "[T]oday unfortunately [Defendant] makes me ashamed of my own spirituality....