State v. Melton, 253PA17
| Decision Date | 07 December 2018 |
| Docket Number | No. 253PA17,253PA17 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Darrell Lee MELTON |
Joshua H. Stein, Attorney General, by Matthew Tulchin, Special Deputy Attorney General, for the State.
Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant Appellate Defender, for defendant-appellant.
This case comes to us by way of defendant's petition for discretionary review of the Court of Appeals’ decision. Specifically, defendant has asked us to determine whether the Court of Appeals erred by (1) upholding defendant's conviction for attempted murder, and (2) holding that punishing defendant for both solicitation and attempted murder based on the same conduct did not violate double jeopardy. We hold that the Court of Appeals erred in upholding defendant's conviction for attempted murder, and accordingly, we reverse the decision of the Court of Appeals. Because of this holding, we need not reach the double jeopardy issue.
The scene underlying this case began when defendant left telephone messages for an acquaintance, Lawrence Sorkin, in late fall of 2014 and January of 2015. At the time, defendant was involved in an ongoing child custody dispute with his former wife. In his first message, defendant asked if he could have a few minutes of Sorkin's time to discuss something that would be "beneficial" to defendant. In the message in January, defendant stated that he would be willing to give Sorkin $200 for his time. The two agreed to meet at a Waffle House in Brevard in late January.
When they met, Sorkin mentioned defendant's offer of $200 and told defendant that the payment was not necessary; defendant paid the restaurant bill, and they continued their conversation near defendant's car. While they were outside, defendant told Sorkin that he was feeling pressured by his child custody case, that he felt it was not getting any better, and that he was tired of going to court. According to Sorkin, defendant also recalled an earlier conversation between them in which Sorkin jokingly recalled that his father mentioned he had connections to some men in Jacksonville, Florida who could "break a few legs." By the end of the conversation, Sorkin feared that defendant meant to hurt his former wife.
Later that same day, Sorkin went to the Transylvania County Sheriff's Department to report his discussion with defendant. From that point on, Sorkin cooperated with the Sheriff's Office and helped arrange a meeting between defendant and an undercover officer in a Walmart parking lot. Sorkin's role in arranging the meeting involved multiple telephone conversations and in-person meetings with defendant, in which Sorkin acted as if he was contacting a "resource" on defendant's behalf who could "take care of the matter however [defendant] wanted."
The meeting between defendant and the undercover officer at the Walmart parking lot occurred on 3 February 2015. Sorkin was also present, and he directed defendant to the undercover officer's car. Sorkin left immediately after defendant made contact with the officer. When defendant entered the car, the officer, playing the role of a hired killer, scanned defendant and asked him if he had a wire or a recording device. Later, defendant mentioned the $2,500 that he was told to bring to the meeting. The officer instructed defendant to show him the money.
After seeing the money, the officer began to ask defendant questions about his former wife. Defendant provided her name, address, and cell phone number. At some point during the meeting, defendant also provided pictures of his former wife. The officer then asked defendant how he could "get" defendant's former wife "by herself." In response, defendant gave the undercover officer the name of his daughter's elementary school and the drop-off times at the school. In response to questions, defendant then gave a description of his former wife's car and informed the officer that she was always alone in the car after she dropped their daughter off at school.
Next, the undercover officer instructed defendant on how they would communicate and how defendant would pay the remaining $7,500. Specifically, the officer told defendant that he had just purchased a phone that he would have for six days only. He told defendant that in two days, defendant should buy a "Verizon burn phone," and text him from that number. The officer told defendant that, "[w]hen it's done," he would instruct defendant on where to send the remaining $7,500. The officer then told defendant that "when we're done," defendant should destroy the Verizon burn phone.
After giving defendant these last instructions, the undercover officer asked defendant where he wanted his former wife's dead body. Defendant responded that he was "having trouble understanding." After this response, the officer asked defendant, "Why am I here?" and defendant responded, The officer then stated that he was not a lawyer, and defendant indicated that he understood that. While pushing defendant to clarify his intent, the officer told defendant that if he wanted sole custody, he could "give [defendant] sole custody." Defendant responded that he wanted sole custody. Then after again being asked where he wanted his former wife's dead body and how defendant "want[ed] [him] to do it," defendant told the officer that "as long as there's no chance that I will answer questions or be involved, I want – I want to make sure my daughter is with me all the time, only me, no chance of any further court cases or anything." Defendant ultimately told the officer that he did not "want any bodies moved."
After stating that he did not want any bodies moved, defendant explained to the undercover officer how he could do the job without defendant's daughter being present. Defendant said, After the officer asked defendant again how he "want[ed] it done," defendant ultimately responded, "I don't care about any details."
Before defendant left the vehicle, the undercover officer asked whether defendant would have any trouble acquiring the rest of the $7,500. Defendant responded that he had the full $10,000 with him, and he gave it to the officer. After defendant handed over the money, the officer told him they would have no more communication and that defendant would know once his former wife was dead. Next, the officer asked defendant if the $10,000 was all from one bank. Defendant responded that the money was withdrawn at "[d]ifferent times" and that he "saved a while." The officer next said to defendant that his former wife could "disappear ... Thursday or not." Defendant then responded "Yes, sir" to whether "Thursday it is okay?" At that point, defendant left the officer's car, and he was arrested as he returned to his own car. At the time of defendant's arrest, the undercover officer had left the Walmart parking lot.
Following his arrest, defendant was indicted on 9 February 2015 on charges of attempted first-degree murder and solicitation to commit first-degree murder. Defendant filed a motion to continue on 7 April 2016 requesting more time to obtain a neuropsychiatrist to examine the results of an MRI done on defendant's brain. The court denied defendant's motion to continue.1 Defendant's trial began on 18 April 2016, and the facts summarized above were placed into evidence, primarily through the testimonies of Sorkin, the undercover officer who met with defendant, and defendant himself.
At the close of the State's evidence, defendant moved to dismiss, arguing that "attempted murder .... falls outside of the purview of the statute under the evidence ... here." The motion was denied. At the close of all evidence, defendant renewed his motion to dismiss, arguing that "on the attempted murder charge ... the act or the res that is being used, as I understand it ... was in point of fact subsumed in the solicitation and not indicative of an attempt." The court denied defendant's renewed motion to dismiss.
The jury found defendant guilty of attempted first-degree murder and solicitation to commit first-degree murder. The court sentenced him to a term of 157 to 201 months for attempted first-degree murder and a consecutive term of 58 to 82 months for solicitation to commit first-degree murder. Defendant gave oral notice of appeal at trial.
Id. Based on this evidence, the Court of Appeals reasoned that defendant had committed an overt act because, "[a]t that point, Melton had taken every step necessary to complete this contract killing." Id. The Court of Appeals added:
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