State v. Shelly
| Decision Date | 02 January 2007 |
| Docket Number | No. COA05-1395.,COA05-1395. |
| Citation | 638 S.E.2d 516 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Wilford Benjamin SHELLY. |
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, Durham, for Defendant-Appellant.
Defendant appeals from judgments entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder in the death of Malcom Jackson. Defendant was sentenced to life imprisonment without parole on the conviction of first-degree murder and to a minimum term of 157 months and a maximum term of 198 months on the conviction of conspiracy to commit first-degree murder, with the sentences to run consecutively. At trial, the State's evidence tended to show the following:
On the afternoon of 1 January 2002, Andre Jackson ("A.J.") and his brother Malcom Jackson ("Malcom") were murdered beside a wooded dirt road near the Kelly Springfield plant in Cumberland County. Their friends Rodney Wilkerson ("Rodney") and Tracie New ("Tracie") witnessed the murders. The previous night, on New Year's Eve, A.J. and Defendant's uncle, Earl Shelly ("Earl"), had an altercation at Defendant's apartment. A.J. was removed from the apartment, but during the morning of 1 January 2002, returned with his brother Malcom and fought with Defendant and Defendant's cousin, Lamont Shelly ("Lamont").
Later that day, Defendant and Lamont drove to their grandmother's home to pick up Earl and then to Lamont's sister's home, where they picked up a 12-gauge shotgun. The three men returned to Defendant's apartment and located his .380 handgun. Later that same day, Rodney, Malcom, A.J., and Tracie were parked down a dirt road near the Kelly Springfield plant. Rodney, Malcom, and A.J. were in one car, while Tracie was alone in her own car.
At trial, Rodney testified that, while they were parked, he heard a car coming and saw Earl hanging out the window with a "big gun." Malcom got out and stood behind the driver's side door, while Rodney ran around to the back of the car and put his hands into the air. After Rodney was secure behind the car, he ran away from the scene. As he was running, he heard a shot fired, glass shattering, and Malcom yelling.
Tracie testified she saw Malcom get out of the car and put his hands in the air before Earl shot him with the shotgun. The Shelly car then stopped, and Tracie saw Lamont get out of the car with a handgun and shoot Malcom in the head while Malcom was lying on the ground. She saw a third person in the Shelly vehicle, but could not identify that person. When Earl fired another shot through the windshield and hit A.J., Tracie drove away in her car.
After Rodney left the scene, he ran home and notified the police. Upon investigation, deputies found a car parked off a dirt road near the Kelly Springfield plant with the bodies of Malcom and A.J. lying near it on the ground. They found six 12-gauge shotgun shell casings and five .380 casings near the bodies. Dr. John D. Butts, Chief Medical Examiner for the State of North Carolina, determined that both A.J. and Malcom died as a result of multiple gunshot wounds. A Lorcin .380 Model L 380 handgun was recovered in the woods near the home of Defendant's cousin, Tommie Shelly. Also, a Mossberg Model 88 12-gauge shotgun was obtained from a source close to Defendant. A firearms expert examined the weapons and determined that the shell casings, buckshot and bird shot pellets, and bullets found at the scene and recovered from the bodies of the deceased, were fired from these weapons.
After speaking with Rodney, Tracie, and other parties, Cumberland County Sheriff's investigators identified Earl Shelly, Lamont Shelly, and Defendant as suspects. At the time of Defendant's detainment, on 2 January 2002, a .380 round of ammunition was found in his pocket.
Defendant was interviewed by investigators at the Cumberland County Sheriff's Office, where, after executing a General Adult Rights Form, he confessed to shooting Malcom in the head with the handgun. On 23 July 2002, a grand jury indicted Defendant on two charges of first-degree murder and two charges of conspiracy to commit first-degree murder, in the deaths of A.J. and Malcom.
Defendant's counsel filed a motion to suppress Defendant's confession and a supporting affidavit as required by N.C. Gen.Stat. § 15A-977. After hearing arguments on the motion, the trial court orally entered the following findings of fact into the record: (1) the interrogation occurred while Defendant was in custody and lasted approximately one hour; (2) Defendant asked "about whether an attorney can come . . . up here and see me?"; (3) Defendant indicated, "I am very ignorant of all this"; (4) a conversation ensued about the availability of a public defender; and (5) Defendant never expressly stated that he wanted a lawyer present, did not understand his rights, or wanted to stop talking.
On these findings, the trial court denied Defendant's motion to suppress his confession. The case was then tried in Cumberland County Superior Court between 29 September and 8 October 2004. At the end of the trial, the jury found Defendant not guilty of first-degree murder or conspiracy to commit first-degree murder in the death of A.J. The same jury found Defendant guilty of first-degree murder and conspiracy to commit first-degree murder in the death of Malcom. From the judgments entered upon these convictions, Defendant appeals. We find no error.
Defendant first assigns error to the trial court's admission of his confession. Defendant argues that his confession should have been suppressed because he invoked his right to counsel and it was not honored by the police; the police advised Defendant of his right to counsel and then effectively blocked the assertion of this right; the confession was made under the hope of leniency created by the interrogating officer; and the trial court failed to make written findings of fact and conclusions of law after the suppression hearing.
Defendant contends that the trial court's findings of fact and conclusions of law regarding the voluntariness of the confession constitute reversible error because there were material conflicts in the evidence during the motion to suppress hearing. That is, Defendant argues that the trial court erred in denying his motion to suppress the confession because there was competent evidence presented at the suppression hearing supporting his position that he invoked his right to counsel, the assertion of his right to counsel was blocked by the interrogating officer, and his confession was made under the hope of leniency. Findings of fact relating to the voluntariness of a confession are binding on our Court if supported by competent evidence in the record. State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). We may not set aside or modify findings substantiated by evidence, even if the evidence is conflicting. State v. Jackson, 308 N.C. 549, 304 S.E.2d 134 (1983) (citations omitted).
In determining whether the trial court's finding that Defendant's statement was voluntary is supported by competent evidence, we must review the totality of the surrounding circumstances in which the statement was made. State v. Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000), cert. denied, 531 U.S. 1165, 121 S.Ct. 1126, 148 L.Ed.2d 992 (2001). A statement is involuntary or coerced if it is the result of government tactics so oppressive that the will of the interrogated party "`has been overborne and his capacity for self-determination critically impaired[.]'" Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854, 862 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1057-58 (1961) (citation omitted)). Our Supreme Court has established several factors that should be considered in determining the voluntariness of statements:
[W]hether defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant.
State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (citations omitted).
First, Defendant argues the trial court improperly determined that he failed to invoke his right to counsel and, consequently, we should view his statement as involuntary. Defendant cites State v. Torres, 330 N.C. 517, 412 S.E.2d 20 (1992), to support his contention that a defendant can invoke his right to counsel simply by asking a law enforcement officer if he needed a lawyer, since that question may indicate a desire to have the help of an attorney during police interrogation. While we acknowledge "there are no `magic words' which must be uttered in order to invoke one's right to counsel," id. at 528, 412 S.E.2d at 26, we have, since Torres, held that "[a] suspect must unambiguously request counsel to warrant the cessation of questions and 'must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.'" State v. Barnes, 154 N.C.App. 111, 118, 572 S.E.2d 165, 170 (2002) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362, 371 (1994)), disc. review denied, 356 N.C. 679, 577 S.E.2d 892 (2003). Until a suspect makes such an unambiguous request, the police may continue to question...
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