State v. McNeill

IN THE SUPREME COURT OF NORTH CAROLINA
No. 446A13
Filed 8 June 2018
STATE OF NORTH CAROLINA
v.
MARIO ANDRETTE McNEILL
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing
a sentence of death entered by Judge James Floyd Ammons Jr. on 29 May 2013 in
Superior Court, Cumberland County, upon a jury verdict finding defendant guilty of
first-degree murder. Heard in the Supreme Court on 9 May 2017 in session in the
Old Chowan County Courthouse (1767) in the Town of Edenton pursuant to N.C.G.S.
§ 7A-10(a).
Joshua H. Stein, Attorney General, by Anne M. Middleton and Derrick C.
Mertz, Special Deputy Attorneys General, for the State.
Glenn Gerding, Appellate Defender, and Andrew DeSimone, Benjamin
Dowling-Sendor, and Daniel Shatz, Assistant Appellate Defenders, for
defendant-appellant.
HUDSON, Justice.
Defendant Mario Andrette McNeill appeals his conviction and sentence of
death for the first-degree murder of Shaniya Davis. Defendant was found guilty of
first-degree murder based on malice, premeditation, and deliberation, and under the
felony murder rule, with the underlying felonies being sex offense of a child and
kidnapping. Defendant was also convicted of related charges of sexual offense of a
STATE V. MCNEILL
Opinion of the Court
child by an adult offender, taking indecent liberties with a child, first-degree
kidnapping, human trafficking, and subjecting the victim to sexual servitude. We
find no error in defendant’s trial or sentencing, and we further determine that
defendant’s sentence of death is not disproportionate to his crimes.
Background
The evidence at trial tended to show that in September 2009, Shaniya Davis
was five years old and, along with her mother, Antoinette Davis, and her seven-year-
old brother, C.D., lived in the trailer of Antoinette’s sister, Brenda Davis, located in
Sleepy Hollow Trailer Park (Sleepy Hollow) in Fayetteville, North Carolina. Brenda
had previously “been seeing” defendant, who also went by the nickname “Mano,”1 and
he had given her the deposit to move into the Sleepy Hollow trailer. Because
defendant spent time at the trailer, he knew Antoinette and had been in the presence
of Shaniya and C.D. before, and he also knew how to get into the trailer, even when
the door was locked. At the time of the events at issue, Brenda was “seeing” Jeroy
Smith, the father of her children. Brenda, Jeroy, and their children stayed in the
back bedroom, while Antoinette and her children stayed in the front room of the
trailer. Defendant lived with April Autry, the mother of his eighteen-month-old
daughter, on Washington Drive in Fayetteville.
1Because defendant is referred to as “Mano” in the transcript, we use that spelling
here; however, in a police interview, he explained that he was known as “Mono,” which people
confused with the “kissing disease.”
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On the evening of 9 November and continuing into the early morning hours of
10 November 2009, after ingesting cocaine and “a couple shots of liquor,” defendant
began “text[ing] all the females in [his] phone.” He tried to text Brenda, but her
phone was turned off. Another woman, Taisa McClain, who also lived in Sleepy
Hollow, began exchanging text messages with defendant and agreed to invite him
over; however, by the time defendant arrived at Sleepy Hollow at 2:52 a.m. on 10
November, Taisa had fallen asleep and did not answer defendant’s texts. At 3:06
a.m., defendant texted “Goodnight” to Taisa and then at 3:07 a.m., defendant again
attempted to text Brenda.
At around 5:30 a.m., Brenda woke up because she thought she heard the
bedroom door open, and she mentioned this to Jeroy. Brenda and Jeroy went back to
sleep but were reawakened at around 6:00 a.m. by Antoinette, who came into the
room and asked if they had seen Shaniya. When they responded in the negative,
Antoinette told them she was going outside to search for Shaniya. While Antoinette
was outside, C.D. told Brenda and Jeroy that defendant had been there the previous
night. Jeroy asked C.D. if he was sure about this, and C.D. responded, “yeah.”
Brenda texted and called defendant, but he did not answer his telephone. Jeroy then
called April Autry, who told him that defendant was not with her.
Antoinette returned to the trailer and reported that she had knocked on doors
in Sleepy Hollow but that no one had seen Shaniya. Brenda told Antoinette to call
the police, but Antoinette was hesitant to do so. Brenda and Jeroy went outside and
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noticed that the stairs and railings of the trailer contained feces that had not been
there the night before. There was also what appeared to be illegible yellow writing
scribbled within the feces on a railing.
Shortly after 6:00 a.m. that same morning, defendant arrived at the Comfort
Inn & Suites (Comfort Suites) in Sanford where he entered the hotel alone, provided
identification, and checked into Room 201 under his own name. There was video
footage of the transaction because cameras operated continually throughout the
hotel.2 Defendant told the front desk clerk, Jacqueline Lee, that he was traveling
with his daughter to take her to her mother in Virginia. Video footage from hotel
security cameras showed that after checking in, defendant returned to his vehicle in
the back of the parking lot at approximately 6:17 a.m, where he remained for several
minutes, before coming back into the hotel carrying a child covered up with a blue
blanket. Lee observed defendant carrying the child on the video feed and noticed the
texture of her hair, which Lee recalled when she saw an Amber Alert that was issued
for Shaniya. Additionally, Seth Chambers, who was staying at the hotel during a
business trip, passed defendant in the hallway near Room 201 at 6:24 a.m. and
observed defendant carrying a child.
2The general manager of the hotel, Angela Thompson, testified at trial and explained
that because the cameras are manually programmed, the time varies slightly between
separate cameras, but by no more than a minute apart. Additionally, Thompson testified
that on 10 November she had not yet changed the time on the recorders to reflect the recent
daylight savings time change on 1 November 2009; as a result, the time stamps on the video
recordings were one hour ahead of the actual time. For clarity, we refer simply to the actual
time.
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At the hotel’s morning shift change, Regina Bacani replaced Lee at the front
desk. During the shift change, defendant came to the breakfast area alone, got a
banana, some juice, and a muffin, and took them back to his room. Lee pointed
defendant out to Bacani and told her about the recent check-in. Hotel cameras
showed defendant walking toward the breakfast area at 6:36 a.m. and returning
down the hall and into his room with food and drink in his hands.
Back at Sleepy Hollow, Antoinette called the police at 6:52 a.m. at the urging
of Brenda. About ten minutes after Antoinette’s telephone call, the police arrived,
began searching for Shaniya with canines, and started interviewing people.
Fayetteville Police Officer Elizabeth Culver observed a substance that was later
determined to be feces on both railings of the front porch. The substance was smooth,
like something had been poured on it. Antoinette Davis had a cooking pot in her hand
when Officer Culver arrived, and someone said Antoinette had poured water on the
railings, so Officer Culver asked her not to do that. In the trash can of unit 1119,
police found a blanket that Antoinette Davis identified as hers and which Jeroy Smith
recognized as having been in the living room of the trailer recently. The blanket was
a thick child’s comforter-type blanket, and it had feces on it. Jennifer Slish, a forensic
technician for the Fayetteville Police Department at that time, took the blanket into
evidence to be processed for fluids, fibers, and hairs.
Officer Culver spoke with Antoinette, Brenda, Jeroy, and C.D. at the scene.
C.D. seemed very distracted and would look at his aunt before responding. C.D. said
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he remembered Shaniya coming to bed but did not remember her leaving the
bedroom. At trial, C.D. ultimately testified that he had seen defendant at the trailer
that morning. Because Antoinette and Brenda were consistently looking at their
phones and texting, Officer Culver had difficulty getting them to focus on the
questions being asked, so her Lieutenant agreed to take them downtown to be
interviewed. Officer Culver and her partner, Daniel Suggs, went to the main office
of the trailer park to view the security video so as to look for a child roaming around
the trailer park or for vehicles coming into the area.
At approximately 7:34 a.m., the video cameras at the Comfort Suites showed
defendant leaving Room 201 and going to the elevator with a child later identified as
Shaniya. At 7:35 a.m., the video shows defendant exiting the side door of the hotel
and walking down the sidewalk still carrying Shaniya. Matthew Argyle, the hotel’s
maintenance worker at the time, appeared on the video one minute later. Argyle
later testified that he was outside the side door picking up cigarette butts and trash
when he saw defendant come out with a five- or six-year-old female child on his
shoulder. Defendant had her covered, and Argyle thought she was asleep. When
Argyle said hello, defendant made eye contact with him before looking away without
saying anything in response and continuing walking toward the parking lot. Argyle
“noticed something was amiss,” and he thus tried to observe defendant without
making it obvious that he was doing so. Defendant put the child in the right rear
passenger side of his car, got into the driver’s seat, and began smoking a cigarette or
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cigar. Argyle continued to watch defendant while acting like he was doing busy work,
because he just felt something was amiss. Defendant then drove to the pavilion at
the front entrance of the hotel, extinguished his smoking material, and entered the
hotel.
Defendant approached the front desk and asked Bacani for his security deposit,
stating that he had to get back on the road to drive his daughter to Virginia to meet
her mother. Security cameras show Bacani giving defendant the cash receipt to sign
and returning the deposit. The housekeeper who later cleaned Room 201 brought
Bacani one or two small, clear, open plastic packets with white residue that she had
found in the room, which Bacani believed to be cocaine.
Meanwhile, Argyle watched defendant leave the hotel entrance, get back in his
car, drive away, and turn left onto the main road. Argyle did not act on his feeling
that something was wrong until the following day when hotel staff saw an Amber
Alert and called law enforcement. The hotel security cameras show defendant leaving
the hotel’s front entrance and getting into his car at 7:40 a.m., after which the car
turned left towards Highway 87.
Telephone records indicate that at approximately 7:49 a.m., defendant sent a
text saying “Hey” to Brenda Davis, who was at the police station at this time and had
texted “Hey” to defendant at 6:53 a.m. after learning from C.D. that defendant had
been in the trailer the previous night. At approximately 8:22 a.m., cell phone tower
pings showed defendant’s phone to be near the intersection of Highway 87, Highway
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24, and Highway 27 in an area known as the Johnsonville and Barbeque area of
Highway 87. At approximately 8:33 a.m., Brenda sent a text message to defendant
stating, “U been 2 my house.” At 8:35 a.m., defendant responded to Brenda, “No
[wh]y.” Brenda sent a return message at 8:37 a.m. stating, “U lyin,” to which
defendant responded, “No can i come though.” At 8:39 a.m., Brenda responded, “Hell
no.” At 8:40 a.m., defendant sent a message to Brenda stating, “Dam its [sic] like
that.” At 8:41 a.m., defendant sent a message to Brenda adding, “Him there.” At
8:47 a.m., Brenda sent a message to defendant telling him, “Dont text me no mo [sic].”
At 8:50 a.m., defendant sent a message to Brenda saying, “Sure what ever.” At 9:19
a.m., defendant sent a message to Brenda inquiring, “[Wh]y [your] baby dad call my
baby ma askin 4 me.” At 9:48 a.m., defendant sent a final message to Brenda asking,
“What da hell is going on.” Brenda testified that she did not tell law enforcement she
was text messaging defendant during the same time she was at the station because
she “didn’t want to assume” anything at that point. For the same reason, she did not
immediately tell police what C.D. had said about seeing defendant in the trailer.
Bacani finished working at the Comfort Suites at 3:00 p.m. and reported back
for the 7:00 a.m. shift change the next day, 11 November 2009. Bacani and Lee then
noticed an Amber Alert on the hotel’s computer screen. Lee thought the picture
shown on the screen was that of the same child she had observed with defendant the
previous morning, and accordingly, she called the Amber Alert hot line. Slish, the
forensic technician, responded to the call and processed Room 201 for evidence. The
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hotel manager advised Slish that the bedding had not been changed but that the
trash had been taken out and a towel had been removed before staff became aware of
the situation. Two comforters from the beds in Room 201 were among the evidence
Slish collected.
Charles Kimble, who was at that time a Captain in the Fayetteville Police
Department and in charge of its investigation bureau, was responsible for the
logistics of trying to find Shaniya. Based on the video from the hotel, police believed
that defendant had been with Shaniya and that she was still alive. After obtaining
defendant’s cell phone number from his mother, police gave the number to FBI
Special Agent Frank Brostrom, who began an analysis of defendant’s phone.
Brostrom testified that the National Center for Missing and Exploited
Children had already notified the FBI about the case. According to Brostrom, when
the FBI receives a notification of a missing child, agents immediately contact local
law enforcement to offer assistance. Brostrom contacted Sergeant Chris Courseon of
the Fayetteville Police Department, who quickly invited Brostrom to come and help
with the search for Shaniya. Brostrom arrived at Sleepy Hollow on the afternoon of
10 November.
In exigent circumstances, including situations when young children are
missing, the FBI can make a showing of imminent danger of serious bodily injury or
death and thereby obtain from communications carriers information such as
telephone data, “GPS, toll records,” and cell tower records. Brostrom had already
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telefaxed exigent circumstance requests to telephone companies to obtain
information on phone numbers belonging to Brenda Davis, Antoinette Davis, and an
associate of theirs, and on 12 November, Brostrom made a request for information
regarding defendant’s phone number. Brostrom quickly obtained information
associated with defendant’s cell phone including call details, cell phone tower
locations, and text messaging, with longitudes and latitudes for the cell towers for
which the phone number would have pinged.
Defendant’s cell phone data were analyzed by Special Agent Michael Sutton of
the FBI’s Cellular Analysis Survey Team (CAST). CAST assesses cellular telephone
records and applies the cell tower and sectors utilized by a particular phone to map
its location. When Sutton received the electronic information from defendant’s cell
phone, he performed an initial analysis, created some rough draft maps, and provided
Brostrom an initial search area in the Highway 87 area along Highway 27. Following
the FBI’s recommendation, police began searching for Shaniya in the area around
Highway 87 from Spring Lake toward Sanford. Having received offers of assistance
from volunteers and different law enforcement agencies, investigators mobilized a
huge search and rescue effort.
After the hotel video showing defendant with a child believed to be Shaniya
came to light, Brenda Davis and Jeroy Smith told police that C.D. had seen defendant
at the trailer the night Shaniya disappeared. Brenda had also seen defendant try to
talk to Antoinette at their aunt’s house, to which Antoinette responded, “I don’t have
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shit to say to you. I just want to know where my mother fucking baby’s at.”
Defendant said, “All right,” and jumped in his car and sped away. Brenda began to
think Antoinette was lying about what she knew, and Brenda and Antoinette argued
and did not speak after this. In the evening hours of 12 November, Brenda talked to
detectives again, told them about the text messages with defendant, and ultimately
gave them her phone to take photos of these texts.
That same day, police found defendant, and he agreed to come to the station to
speak with them. Police also located defendant’s Mitsubishi Gallant, which was
backed into a space at the Mount Sinai apartments, away from his residence on
Washington Drive. Police did an exigent circumstances search of the vehicle’s trunk
and then had the car towed to the police department. The car was processed for
forensic evidence, which included taking soil samples from the wheel wells and taking
the brake and gas pedal covers for substance analysis.
Beginning at around 9:30 p.m. on the evening of 12 November, several law
enforcement officers interviewed defendant in an effort to find Shaniya. Although
Shaniya had now been missing for two days, officers were still hopeful of finding her
alive. The officers did not handcuff defendant or place him under arrest, and they
specifically informed him that the door to the interview room was unlocked and that
he was free to leave the room. Defendant also had his cell phone, on which he
continued to receive messages and which he used during breaks in the interview.
Defendant admitted he was at Sleepy Hollow just after midnight on 10 November
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driving around in the black Mitsubishi, but at first he denied going to Brenda Davis’s
trailer, denied seeing Shaniya or even knowing her, denied having her in the vehicle,
and denied leaving the city limits or being in Sanford at a hotel. When police showed
defendant a photograph of himself at the hotel, defendant initially denied it was he.
When confronted with the information that the same person signed in to the hotel as
Mario McNeill showing defendant’s identification and listing defendant’s home
address, defendant suggested that maybe he had lost his identification. Defendant
then admitted he had been at the hotel with Shaniya.
About fifty-four minutes into the interview, defendant began telling a story
about receiving a text message, which he said he thought came from Brenda Davis’s
phone, telling him to come to Sleepy Hollow and pick Shaniya up on the porch.
Defendant said he got Shaniya and took her to the hotel room, where he ingested
cocaine. According to defendant, while he was at the hotel, he got a call or text
message from some unknown people to bring Shaniya to a dry cleaning establishment
at the corner of Country Club Drive and Ramsey Street. Defendant stated that he
delivered Shaniya to these unnamed people and that they were driving a gray Nissan
Maxima.
Agent Brostrom testified that the focus of the interview changed when
defendant suddenly stated he was waiting to get a call “to come to kill her.” The
interviewing officers tried to get defendant to expand on this statement, but he would
not. The messages on defendant’s phone exchanges with Brenda did not pertain to
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Opinion of the Court
picking up someone waiting on the porch, as defendant claimed during the interview.
There were no calls or text messages to defendant’s phone from unknown persons, as
claimed by defendant; the only messages during this time period were between
defendant’s and Brenda’s phones. At the end of the interview, defendant was arrested
for kidnapping Shaniya.
When police later viewed the videotape of the interview, they saw that when
they left defendant alone in the interview room during a break, defendant made the
sign of the cross, took out a key, got down on the floor, put the key in a wall electrical
socket, and appeared to receive a jolt. Defendant then took off his shoes and put the
key in the electrical socket again.
Shaniya had been reported missing on 10 November, and a massive search was
continuing along Highway 87 but had not yet located Shaniya. Kimble, the head
investigator for the Fayetteville Police Department, later testified in a pretrial
hearing that on the morning of 13 November, he met with then-District Attorney Ed
Grannis about several cases, including this one. The District Attorney pulled Kimble
aside and told Kimble that Allen Rogers, a Fayetteville defense attorney, might have
some information that could help them in the case and that Rogers would be calling
him. Kimble did not know how Grannis knew Rogers might be able to assist. Rogers
had accompanied defendant at his first appearance on Friday morning following his
arrest on kidnapping charges, and it was Kimble’s understanding that Rogers was
defendant’s attorney in this matter.
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The following day, Kimble received a telephone call from attorney Coy Brewer.
Brewer said the information Kimble needed was to look for green porta-potties on
Highway 87. Based on the information he received earlier that Allen Rogers would
be calling, Kimble assumed after receiving the call from Coy Brewer, that Brewer and
Rogers were working together on the case.
Police did look for green porta-potties along Highway 87 and saw numerous
porta-potties along the road. Kimble told District Attorney Grannis that the
information he had received from Brewer was vague, and Grannis suggested he talk
to Rogers. On Sunday, 15 November, Kimble called Allen Rogers and told him that
the information he had received from Brewer about looking for green porta-potties
along Highway 87 was somewhat vague. Rogers said he was traveling and would
talk to his client when he returned to town. Rogers later followed up with Kimble
and said police needed “to look for green porta-potties in an area where they kill deer”
on Highway 87 between Spring Lake and Sanford. According to Kimble, Rogers
stated in a subsequent phone call, “let me talk to my guy” and later called back to say
they need to look in an area where hunters field dress deer after they kill them.
Kimble called Rogers once more to see if there were additional details, and Rogers
said “that’s all my guy remembers.”3
Searchers did not locate Shaniya that day, and the search resumed the
Rogers later testified in a pre-trial hearing that he did not recall using the phrase
3
“my guy.”
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following morning, 16 November 2009. A Sanford company training canine officers
from the Virgin Islands volunteered to assist in the search. Around 1:00 p.m. that
day, one of the officers from the Virgin Islands and his training dog found Shaniya’s
body lying partially under a log in an area with deer carcasses near the intersection
of Highway 87 and Walker Road. Police collected forensic evidence at the scene. On
19 November 2009, defendant was charged with first-degree murder and first-degree
rape of the victim. On 5 July 2011, a Cumberland County Grand Jury indicted
defendant for first-degree murder, rape of a child by an adult offender, sexual offense
of a child by an adult offender, felony child abuse inflicting serious bodily injury,
felony child abuse by prostitution, first-degree kidnapping, human trafficking (minor
victim), sexual servitude (minor victim), and taking indecent liberties with a child.4
Defendant filed various pre-trial motions, several of which are relevant to his
contentions on appeal. Before the indictments, on 9 June 2011, defendant filed a
Motion To Prohibit The State from Seeking the Death Penalty Pursuant to the North
Carolina Racial Justice Act, and on 5 June 2012, defendant filed a supplement to the
motion. A Rule 24 conference was held on 5 October 2011, during which the State
gave notice of its intent to seek the death penalty. Defendant did not raise his claim
under the Racial Justice Act at the Rule 24 conference. The trial court conducted a
4 On 25 July 2011, the grand jury returned superseding indictments for all the
charges. On 11 February 2013, the grand jury again returned superseding indictments for
first-degree kidnapping, human trafficking (minor victim), and sexual servitude (minor
victim).
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hearing on numerous pre-trial motions on 11 January 2013, at which time the trial
court denied defendant’s motions under the Racial Justice Act.
On 9 January 2013, defendant filed a motion to suppress all statements he
made to law enforcement officers during his interview on 12 November 2009. The
motion was heard on 2 April 2013, and on 4 April 2013, the trial court signed an order
denying the motion in part and granting it in part, in which the court suppressed
defendant’s statements made during a one-minute period near the end of the
interview, when Brostrom “answered the Defendant’s question by telling the
Defendant that he had been free to leave until he had confessed to kidnapping” but
had not yet advised defendant of his Miranda rights.
The next day, 5 April, defendant filed a document captioned in part a Motion
to Require Specific Performance or, Alternatively, to Suppress Statements and
Evidence.5 The motion alleged that, in exchange for information regarding the
location of Shaniya’s body as conveyed through defendant’s initial attorneys, Allen
Rogers and Coy Brewer, the State had agreed not to seek the death penalty.
Defendant sought “specific performance” of the purported agreement, suggesting that
the trial court should declare the case noncapital or, in the alternative, suppress the
5The full title of defendant’s motion was “MOTION TO REQUIRE SPECIFIC
PERFORMANCE BY THE STATE OF ITS PROMISE TO DEFENDANT; OR, IN THE
ALTERNATIVE, MOTION TO SUPPRESS STATEMENTS OF DEFENDANT THAT LED
TO DISCOVERY OF BODY, ALONG WITH SUPPRESSION OF ANY AND ALL EVIDENCE
DERIVED FROM THE DISCOVERY OF THE BODY.”
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evidence that defendant’s attorneys had disclosed the location of Shaniya’s body as
well as all evidence obtained from discovery of the body because defendant had
received ineffective assistance of counsel. At the hearing on the motion on 8 April
2013, defendant presented documentary evidence, but offered no testimony. The trial
court orally denied defendant’s motion at the hearing and entered its written order
on 17 April 2013. The trial court found that no agreements existed between the State
of North Carolina and defendant in exchange for his information regarding the
location of Shaniya and that his attorneys were authorized by him to provide the
information to law enforcement. Further, the trial court ruled that the disclosure did
not occur at a “ ‘critical stage’ of the proceeding,” but that even if such had been the
case, defendant did not receive ineffective assistance of counsel.
Additionally, when the trial court became aware at the 8 April hearing that
the State was offering defendant a plea of guilty to first-degree murder with a
sentence of life imprisonment without parole in lieu of a possible death sentence, the
trial court inquired of defendant’s counsel if defendant and they were aware of the
offer and whether they needed additional time to consider it. Defendant’s counsel
informed the trial court that defendant had elected to proceed to trial. The trial court
required the State to hold the offer open for at least one more day to give defendant
and his counsel more time to consider the offer. On 9 April 2013, defendant, through
his counsel, rejected the State’s offer of life imprisonment and elected to proceed to
trial.
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Also on 5 April 2013, the State filed a motion in limine asking the court to
determine the admissibility, under Rule of Evidence 801(d), of statements made by
defendant through his counsel to law enforcement concerning the location of the body
of Shaniya Davis. When this motion came on for hearing on 26 and 29 April 2013,
defendant made oral motions arguing, inter alia, that evidence regarding the
disclosure of Shaniya’s location was inadmissible on grounds of: (1) ineffective
assistance of counsel; (2) attorney-client privilege, the Sixth Amendment to the
United State Constitution, and Article I, Section 23 of the North Carolina
Constitution; (3) N.C.G.S. § 8C-1, Rule 801(d); and (4) the Due Process and Law of
the Land Clauses of the Federal and North Carolina constitutions. The trial court
heard testimony from Kimble, Rogers, and Brewer;6 defendant again did not testify
at this hearing. The trial court entered a written order, which included findings and
conclusions and also adopted and incorporated by reference the findings and
conclusions set forth in its 17 April 2013 order, concluding that defendant’s right to
effective assistance of counsel had not been violated and that the attorneys’
6 Brewer asserted the attorney-client privilege as to all questions asked, including
whether he represented defendant. After Brewer’s testimony the trial court noted that for
the privilege to exist, the relationship of attorney and client had to be shown, and defendant
had not even established this fact. Defendant then called attorney Allen Rogers, who in
similar vein asserted the attorney-client privilege as to each question asked. The trial court
noted that Rogers’s client was present; the State noted that defendant was asserting
ineffective assistance of counsel in the alternative and thus had waived the privilege as to
this subject. The trial court ruled defendant had waived the privilege as to the things alleged
and ordered Rogers to answer the questions.
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statements to law enforcement regarding Shaniya’s location were admissible through
Captain Kimble as an exception to the hearsay rule under N.C.G.S. § 8C-1, Rule
801(d) (“Exception for Admissions by a Party-Opponent”).
Defendant was tried before Judge James Floyd Ammons Jr. at the 8 April 2013
criminal session of the Superior Court in Cumberland County. Before trial, the State
dismissed the two charges of felony child abuse. At trial, defendant stipulated to four
items: (1) that he was at Sleepy Hollow; (2) that he left the trailer park with Shaniya
Davis; (3) that he was at the Comfort Suites with Shaniya Davis; and (4) that he left
the Comfort Suites with Shaniya Davis. In addition to the evidence previously
discussed, the State presented considerable forensic evidence at trial.
Thomas Clark, M.D., Deputy Chief Medical Examiner for the State of North
Carolina until his retirement in 2010, conducted the autopsy on Shaniya Davis on 17
November 2009 and testified at trial as an expert in the field of forensic pathology.
The autopsy identified a small bruise on the left side of Shaniya’s face, injuries to her
vaginal area, and two abrasions on her upper thighs. Dr. Clark testified that
abrasions are a scraping type of injury in which part or all of the outer layer of skin
is removed by a blunt object, and that two linear or line-like abrasions at the upper
part of Shaniya’s inner thighs matched the band of the underwear Shaniya was
wearing. Dr. Clark noted injuries consistent with sexual assault, specifically, the
absence of a hymen and the presence of a ring of abrasion or scraping injury
surrounding the entrance to the vagina indicating that a blunt object had penetrated
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the vagina and left the ring of injury. In addition to preparing a sexual assault kit,
Dr. Clark collected several hairs that were found during the external examination
and preserved the sheet on which Shaniya was initially examined. Shaniya’s lungs
showed edema, chronic bronchitis, and focal intra-alveolar hemorrhage. Edema is
caused by an imbalance of pressure in the body that causes fluid from capillaries to
enter the air spaces in the lung. Dr. Clark concluded that the most likely cause of
death was external airway obstruction or asphyxiation.
Special Agent Jody West, a supervisor in the forensic biology section of the
State Crime Lab, testified as an expert in the field of forensic serology and forensic
DNA analysis. Special Agent West examined the evidence in this case, including
performing a Kastle-Meyer or phenolphthalein test, which is a test used to indicate
whether blood is present on an item. This chemical analysis indicated the presence
of blood on the vaginal swabs, rectal swabs, oral swabs, and the crotch area of
Shaniya’s panties. Samples from the small blanket recovered from the trash can gave
the chemical indication for blood, as did the inside bottom rear portion of the shirt
Shaniya was wearing. The white sheet from the medical examiner’s office also gave
a chemical indication for the presence of blood. Examination of the items failed to
produce a chemical indication for the presence of semen, spermatazoa, or human
saliva.
DNA analysis on samples taken from the rear seat of defendant’s car was
consistent with multiple contributors; defendant could not be excluded as a
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contributor, and no conclusion could be rendered regarding the contribution of
Shaniya Davis to this mixture. Special Agent West transferred some items to
Jennifer Remy of the trace evidence section at the Crime Lab for DNA hair analysis
and to Kristin Hughes of the forensic biology section to perform Y-STR analysis—a
type of DNA analysis focusing on the Y chromosome. Analysis of hairs collected in
the case ultimately revealed a pubic hair having the same mitochondrial DNA as
defendant’s pubic hair found on the hotel comforter, and another pubic hair with the
same mitochondrial DNA as defendant’s pubic hair found on the small blanket found
in the trash can of the mobile home park. Defendant could not be excluded as the
source of these two hairs. Two head hairs found on the small blanket located in the
trash can of the mobile home park had the same mitochondrial DNA sequence as
Shaniya Davis’s head hair; therefore, Shaniya could not be excluded as the source of
those hairs. Three hairs recovered from Shaniya’s right hand by the medical
examiner were consistent with Shaniya’s own head hair and were not sent for further
testing. The Y-STR analysis on the vaginal swabs, the rectal swabs, and the oral
swabs revealed no male DNA; Special Agent Hughes testified that this result was not
unexpected because DNA begins to degrade or break down over time and that beyond
a seventy-two hour window, it becomes more and more likely that investigators will
not be able to obtain any DNA profile.
Heather Hanna, a geologist with the North Carolina Geological Survey,
testified as an expert in forensic geochemistry and forensic geology. Hanna analyzed
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Opinion of the Court
soil samples, including those from the roadside near where the body was found, from
the body recovery site, and from the gas pedal of defendant’s Mitsubishi Gallant. In
all three samples she found garnet, a mineral grain that was unique to two geologic
units upstream from near where the body was discovered and which would not
naturally be found in Fayetteville. Hanna concluded that it was “highly unlikely”
that the soil from those three samples did not come from the same source.
Hanna also found a tiny metal fiber in the soil sample taken from the shoulder
of the road near the body recovery site and another metal fiber in the soil collected
from the gas pedal of defendant’s car. These samples were analyzed by Roberto
Garcia, an expert in materials characterization and identification who is a materials
engineer at N.C. State University in the analytical instrumentation facility. Garcia
testified that the measurements of the two pieces of metal were consistent with each
other and that their thickness and shape suggested they came from a braided metal
wire. Further, a chemical analysis using an energy dispersive spectroscopy (an EDS
detector) indicated that the two samples also were chemically consistent. Garcia’s
conclusion was that the metallic fiber from the gas pedal of defendant’s car and the
metallic fiber from the soil sample from the body recovery site were consistent with
each other and consistent with having the same source.
Following Special Agent Sutton’s initial analysis of defendant’s cell phone
activity, which led to his recommendation to law enforcement to search in the
Highway 87 area along Highway 27, he later conducted a more extensive analysis of
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defendant’s cell phone. Based on defendant’s cell phone records, Sutton testified
where defendant’s phone had been at certain times on 10 November 2009: at
approximately 2:33 a.m., it was in the area of Fayetteville at and around defendant’s
residence on Washington Drive; at approximately 2:59 a.m., 3:02 a.m., 3:05 a.m., 3:19
a.m., and 3:57 a.m., it was in the area of and around Shaniya’s residence at Sleepy
Hollow; at approximately 7:00 a.m., 7:32 a.m., and 7:45 a.m., it was in the Sanford
area at or near the Comfort Suites; at approximately 8:22 a.m. and 8:25 a.m., it was
south of Walker Road near the intersection of Highway 87, Highway 24, and Highway
27, in an area that is between the Johnsonville and Barbecue area on Highway 87
and is the area in which Shaniya’s body was eventually discovered; and during a
remaining block of calls beginning at approximately 9:38 a.m., the phone was back in
the area of defendant’s residence.
Defendant did not present any evidence during the guilt-innocence proceeding
of the trial.
On 23 May 2013, a jury found defendant guilty of first-degree murder based on
malice, premeditation, and deliberation, and under the felony murder rule, with the
underlying felonies being sex offense of a child and kidnapping. The jury also found
defendant guilty of all other remaining charges, except for rape of a child by an adult
offender.
The trial court then held a capital sentencing proceeding, during which the
State introduced evidence that defendant had been convicted on 10 January 2003 of
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three counts of assault inflicting serious bodily injury. Defendant stipulated that this
information was correct.
Shaniya’s father and half-sister testified as impact witnesses. Shaniya’s
father, Bradley Lockhart, testified that he had met Shaniya’s mother at a party, had
been in a brief relationship with her, and had learned that Antoinette was pregnant
only shortly before Shaniya’s birth on 14 June 2004. For a little less than two years
after Shaniya’s birth, Shaniya lived with Antoinette and her family. Mr. Lockhart
had frequent contact with Shaniya and would pick her up every weekend for visits.
Toward the end of 2006 or the beginning of 2007, Mr. Lockhart bought a fairly
large house in Fayetteville, and Shaniya moved in with him and his four other
children. Shaniya had frequent contact with her mother during this time. Shaniya
was very close with Mr. Lockhart and the other children; she enjoyed dress-up and
prancing around the house in her plastic dress-up shoes but was also a little bit of a
tomboy and liked to play basketball with her little brother and ride her little scooter.
Shaniya considered herself a singer and desired to join the children’s choir at the
church they attended.
Shaniya moved back to be with her mother in October 2009. Even when he
was out of town for work, Mr. Lockhart talked to Shaniya on the telephone four to
five times a week. Mr. Lockhart testified that Shaniya’s death was one of the hardest
things he had experienced, that it tears him up every day, and that he still finds it
hard to sleep even after three-and-a-half years. He said he suffered two collapsed
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Opinion of the Court
lungs from the stress, finds it hard to stay focused and to function, and questions if
he could have done anything different.
Cheyenne Lockhart, Bradley Lockhart’s twenty-one-year-old daughter and
Shaniya’s half-sister, described Shaniya as her little “mini-me” who followed her
everywhere. Shaniya was bubbly and loved to talk and play jokes. She was caring
and would always tell them she loved them. Shaniya’s loss was very painful, and
Cheyenne thinks about Shaniya every day.
Defendant did not present additional mitigation evidence or give closing
arguments in the sentencing proceeding; he understood that this decision was against
the advice of counsel. The trial court determined that there was an absolute impasse
between defendant and his attorneys and ordered the attorneys to acquiesce to
defendant’s wishes.
On 29 May 2013, the jury returned a binding recommendation that defendant
be sentenced to death for the first-degree murder. The trial court accordingly
sentenced Mr. McNeill to death for first-degree murder, and to consecutive sentences
of 336 to 413 months for sexual offense against a child by an adult offender, 116 to
149 months for first-degree kidnapping, 116 to 149 months for human trafficking of
a minor victim, 116 to 149 months for sexual servitude of a minor victim, and 21 to
26 months for taking indecent liberties with a child. Defendant immediately filed his
appeal of right to this Court.
Analysis
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Ineffective Assistance of Counsel
Defendant first argues that he received ineffective assistance of counsel from
his original attorneys because they disclosed to law enforcement where to look for
Shaniya. Defendant contends that even though he was asserting his innocence, his
attorneys, Rogers and Brewer, made this disclosure only one day into their
representation, without seeking any benefit or protection in return, without any deal
in place, without receiving or consulting any formal discovery from the State, and
after giving defendant erroneous advice.
As an initial matter, we have held that ineffective assistance of counsel claims
brought on direct review, as opposed to in a motion for appropriate relief, “will be
decided on the merits when the cold record reveals that no further investigation is
required, i.e., claims that may be developed and argued without such ancillary
procedures as the appointment of investigators or an evidentiary hearing.” State v.
Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (citations omitted), cert. denied,
535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002). Defendants “should
necessarily raise those [ineffective assistance of counsel] claims on direct appeal that
are apparent from the record” and are “not required to file a separate [motion for
appropriate relief] in the appellate court during the pendency of that appeal.” Id. at
167, 557 S.E.2d at 525. Accordingly, “on direct appeal we must determine if . . .
ineffective assistance of counsel claims have been prematurely brought,” in which
event “we must ‘dismiss those claims without prejudice to the defendant’s right to
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reassert them during a subsequent [motion for appropriate relief] proceeding.’ ” State
v. Campbell, 359 N.C. 644, 691, 617 S.E.2d 1, 30 (2005) (second alteration in original)
(quoting Fair, 354 N.C. at 167, 557 S.E.2d at 525), cert. denied, 547 U.S. 1073, 126 S.
Ct. 1773, 164 L. Ed. 2d 523 (2006).
Here defendant first raised his ineffective assistance of counsel argument
before trial in his Motion to Require Specific Performance or, Alternatively, to
Suppress Statements and Evidence. Thus, defendant was able to present evidence
and arguments during a hearing on that motion, which the trial court took into
consideration in its 17 April 2013 order denying defendant’s motion and ruling that
defendant did not receive ineffective assistance of counsel. Additionally, in its
subsequent ruling on the State’s motion in limine and defendant’s oral motions
relating to the admissibility of evidence about the disclosure, the trial court
considered further arguments and evidence, including the testimony of Captain
Kimble, as well as that of defendant’s original attorneys, Rogers and Brewer.
Defendant reasserted his ineffective assistance of counsel argument at this hearing.
In an order entered on 16 May 2013, the trial court again ruled that defendant’s
attorneys were not ineffective. Because the trial court was able to receive evidence
and make findings on this issue before trial, we conclude that “the cold record reveals
that no further investigation is required.” Fair, 354 N.C. at 166, 557 S.E.2d at 524.
Accordingly, we may properly address the merits of defendant’s ineffective assistance
of counsel claim.
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“The right to assistance of counsel is guaranteed by the Sixth Amendment to
the Federal Constitution and by Article I, Sections 19 and 23 of the Constitution of
North Carolina.” State v. Sneed, 284 N.C. 606, 611, 201 S.E.2d 867, 871 (1974). A
defendant’s right to assistance of counsel “includes the right to the effective
assistance of counsel.” State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247-48
(1985) (citing McMann v. Richardson, 397 U.S. 759, 771 & n.14, 90 S. Ct. 1441, 1449
& n.14, 25 L. Ed. 2d 763, 773 & n.14 (1970)).7 A defendant challenging his conviction
on the basis of ineffective assistance of counsel must establish that his counsel’s
conduct “fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
In Strickland the United States Supreme Court set out a two-part test that a
defendant must satisfy in order to meet his burden:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
7 The State argues, and the trial court found in its 17 April 2013 order, that because
the Sixth Amendment is offense specific, and because defendant had at the time of the
disclosure only been charged with kidnapping, defendant’s Sixth Amendment right to counsel
had not attached for purposes of the subsequent first-degree murder charge. Therefore, the
State argues that the trial court correctly found that defendant could not have had an
ineffective assistance of counsel claim under the Sixth Amendment. Because we conclude
that defendant did not receive ineffective assistance of counsel, we need not address whether
defendant’s Sixth Amendment right to counsel had attached with respect to the first-degree
murder charge at the time of the disclosure.
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reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that
renders the result unreliable.
Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Braswell, 312 N.C. at 562-
63, 324 S.E.2d at 248 (“[W]e expressly adopt the test set out in Strickland v.
Washington as a uniform standard to be applied to measure ineffective assistance of
counsel under the North Carolina Constitution.”).
With regard to the first Strickland prong, “[r]ather than articulating specific
guidelines for appropriate attorney conduct, the Court in Strickland emphasized that
‘[t]he proper measure of attorney performance remains simply reasonableness under
prevailing professional norms.’ ” State v. Todd, 369 N.C. 707, 711, 799 S.E.2d 834,
837-38 (2017) (second alteration in original) (quoting Strickland 466 U.S. at 688, 104
S. Ct. at 2065, 80 L. Ed. 2d at 694). We have stated that “[c]ounsel is given wide
latitude in matters of strategy, and the burden to show that counsel’s performance
fell short of the required standard is a heavy one for defendant to bear.” State v.
Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846,
123 S. Ct. 184, 154 L. Ed. 2d 73 (2002); see also Strickland, 466 U.S. at 690-91, 104
S. Ct. at 2066, 80 L. Ed. 2d at 695 (“[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments support
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Opinion of the Court
the limitations on investigation.”). “Moreover, this Court indulges the presumption
that trial counsel’s representation is within the boundaries of acceptable professional
conduct.” Campbell, 359 N.C. at 690, 617 S.E.2d at 30 (citing State v. Fisher, 318
N.C. 512, 532, 350 S.E.2d 334, 346 (1986)). As the Court stated in Strickland:
A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance
....
466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
With regard to the second Strickland prong, “[p]rejudice is established by
showing ‘that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ” Campbell, 359 N.C.
at 690, 617 S.E.2d at 29 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80
L. Ed. 2d at 698). “The fact that counsel made an error, even an unreasonable error,
does not warrant reversal of a conviction unless there is a reasonable probability that,
but for counsel’s errors, there would have been a different result in the proceedings.”
Braswell, 312 N.C. at 563, 324 S.E.2d at 248 (citing Strickland, 466 U.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Campbell, 359 N.C. at 690, 617
S.E.2d at 29-30 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d
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at 698). “[B]oth deficient performance and prejudice are required for a successful
ineffective assistance of counsel claim.” Todd, 369 N.C. at 711, 799 S.E.2d at 837.
When the trial court has made findings of fact and conclusions of law to support
its ruling on a defendant’s claim of ineffective assistance of counsel, “we review the
trial court’s order to determine ‘whether the findings of fact are supported by
evidence, whether the findings of fact support the conclusions of law, and whether
the conclusions of law support the order entered by the trial court.’ ” State v. Frogge,
359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712,
720, 291 S.E.2d 585, 591 (1982)).8 We review conclusions of law de novo. E.g., State
v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citing State v. McCollum, 334
N.C. 208, 237, 433 S.E.2d 144, 160 (1993), cert. denied, 512 U.S. 1254, 114 S. Ct. 2784,
129 L. Ed. 2d 895 (1994), judgment vacated, Nos. 83 CRS 15506-07 (Robeson Co.), 91
CRS 40727 (Cumberland Co.), 2014 WL 4345428 (N.C. Super Ct. Robeson County
Sept. 2, 2014)).
Defendant’s claim stems from the conduct of his original attorneys, Rogers and
Brewer. After defendant was charged with kidnapping, he waived court appointed
counsel and engaged the services of Rogers, who had previously represented
8 While in Frogge the trial court’s order addressed a claim of ineffective assistance of
counsel brought in a postconviction motion for appropriate relief, 359 N.C. at 230, 607 S.E.2d
at 628-29, we can find no reason to apply a different standard in reviewing a trial court’s
ruling on a claim of ineffective assistance of counsel brought before trial and challenged on
direct appeal.
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defendant in 2003 and 2008. Rogers is a former JAG attorney who at that time had
practiced law for twenty years, and a large part of his practice was criminal defense
work. Rogers immediately associated Brewer, with whom he had a working
relationship in criminal cases, to assist in the matter. Brewer is a former assistant
district attorney and former district court judge. Additionally, Brewer was a superior
court judge for the 12th Judicial District from 1977 until 1998, and he was the senior
resident superior court judge for the 12th Judicial District from 1991 to 1998. Brewer
had returned to practicing law, and since 1999 a large part of his practice was
criminal defense. The trial court made findings that Rogers and Brewer were both
experienced criminal defense attorneys.
When Rogers and Brewer undertook representation of defendant on 13
November 2009, Shaniya had been missing since the morning of 10 November. A
massive search had been underway since the morning of Shaniya’s disappearance,
and law enforcement officers, having seen a child resembling Shaniya in the hotel
videos, hoped to find her still alive. Defendant had admitted to police that he had
taken Shaniya from Sleepy Hollow to the Comfort Suites in Sanford, where he had
been observed by hotel cameras and multiple witnesses and was the last person to be
seen with Shaniya. By 12 November, multiple law enforcement agencies and
volunteers were searching in the area around Highway 87 near Sanford, where
defendant’s cell phone data had placed him.
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Rogers had conversations with Kimble to gauge the status of the investigation,
and he was aware of the evidence against defendant and defendant’s admission to
taking Shaniya from Sleepy Hollow to the Comfort Suites. Rogers testified that he
was also aware of defendant’s three felony convictions for assault in 2003, which
constituted aggravating circumstances that could be used at a capital sentencing
proceeding. Accordingly, when Rogers and Brewer met with defendant, “there was
conversation about the search and about the consequences of the child not being
found,” and they began discussing with defendant the possibility that forthcoming
charges could result in a capital case. Defendant “was denying that he was involved
in hurting [Shaniya] or killing her,” and Rogers asked defendant “if he had any
information about the location of [Shaniya].” Defendant told Rogers and Brewer he
did have information about Shaniya’s location, but according to Rogers, “[defendant]
didn’t tell me where he got the information from.” When Rogers was asked at the
hearing whether there was a presumption that Shaniya was alive, he stated:
Again, didn’t know -- really didn’t know. As I said,
[defendant] denied, you know, causing her harm,
assaulting her in any way. There certainly was some
concerns with the amount of time, but I can’t say that we
knew.
Rogers testified that it was in this “atmosphere”—with a five-year-old child missing
over several cold and rainy days, with law enforcement performing a massive search,
and with defendant being the sole suspect and the last person to be seen with
Shaniya—that this conversation came about.
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According to Rogers, they discussed the death penalty with defendant, and
defendant “agreed that it would be in his best interests to offer information that might
be helpful to the location.” Rogers explained to defendant that providing this
information could be helpful because such action could show cooperation and remorse,
which could either help achieve a plea agreement for a life sentence or be presented
as mitigating circumstances in a sentencing proceeding, and ultimately “could avert
the imposition of the -- and execution of the death penalty.” Accordingly, defendant
agreed with Rogers and Brewer that they would recommend where to search to law
enforcement without specifically stating defendant’s name or that he was the source
of the information. According to Rogers, he was trying to give defendant the best
advice he could to help save defendant’s life, and defendant understood the situation
at that point and agreed with the strategy.
Accordingly, Brewer spoke with Captain Kimble on 14 November 2009 and
instructed him to “look for green porta-potties on Highway 87.” Rogers then spoke
with Kimble on 14 and 15 November and told him to “look for green porta-potties in
an area where they kill deer . . . . on Highway 87 between Spring Lake and Sanford,”
and also to “look in an area where they -- where they take the deer after they -- after
they’ve been killed.” Captain Kimble narrowed the search, and at approximately 1:00
p.m. on 16 November 2009, one of the searchers found Shaniya’s body in the woods
“near the area where they were field dressing deer.”
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Defendant first raised his pretrial ineffective assistance of counsel argument
in his 5 April 2013 Motion to Require Specific Performance or, Alternatively, to
Suppress Statements and Evidence. In its 17 April 2013 order denying defendant’s
motion, the trial court found as fact:
2. The Court provided the Defendant the opportunity
to present evidence and arguments during the
hearing on his Motion, and the Defendant did so.
3. The Defendant offered into evidence without
objection four (4) exhibits, Defendant’s Exhibits A,
B, C, and D.[9] The Court carefully examined the
Defendant’s exhibits.
4. When the Court provided the Defendant an
opportunity to present sworn testimony, the
Defendant did not do so.
....
6. During Mr. Rogers’ representation, the Defendant
provided specific information to Mr. Rogers as to the
location of Shaniya Davis’ body, and the Defendant
9 Exhibit A was an e-mail apparently from Agent Brostrom in which he stated:
I think we should monitor the possibility, at the appropriate
time, to approach the attorneys for the kidnaper/rapist Mario
McNeill and for the mother Antoinette Davis, regarding
potential cooperation agreements in order to get the whole story.
To date, I [sic] the DA has offered to take the Death Penalty off
the table in exchange for the body.
The trial court found that “[n]either the District Attorney nor anyone acting on his behalf”
made such an offer and that there existed “no agreement of any kind as to what would happen
if the Defendant provided law enforcement with information concerning the location” of
Shaniya. Defendant does not challenge the trial court’s findings regarding the existence of
any agreement, but instead directs his arguments towards his attorneys’ purported failure
to pursue such an agreement.
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Opinion of the Court
authorized Mr. Rogers to provide that specific
information to law enforcement.
7. Pursuant to the Defendant’s authorization, Mr.
Rogers provided to law enforcement that specific
information as to the location of Shaniya Davis’
body.
8. The Defendant’s information regarding the location
of Shaniya Davis’ body did not constitute an
admission to a crime.
....
13. Under the totality of the circumstances, Mr. Rogers
did not ineffectively assist the Defendant in
providing information to law enforcement
concerning the location of Shaniya Davis’ body
without an agreement of some kind as to what would
happen should the Defendant provide that
information.
14. The Defendant’s provision of such information to law
enforcement through his attorney at that stage in
the search for Shaniya Davis was objectively
reasonable in that it provided the State a basis for it
to consider future plea negotiations with the
Defendant should the Defendant be charged with
more offenses related to the missing child during
which negotiations the death penalty might be
eliminated from the range of possible punishments.
The provision of such information was also
objectively reasonable in that it provided the
Defendant the opportunity to obtain the benefit of a
mitigating circumstance should charges be brought
against the Defendant for which the death penalty
was a possible punishment.
....
17. The Defendant was represented by competent
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counsel who afforded him effective, reasonable, and
professional representation.
From these findings, the trial court made the following conclusions, in relevant part:
3. . . . [E]ven if the exchange of information at issue in
this matter occurred at a “critical stage” of the
proceeding, the Defendant has not shown that his
counsel’s performance fell below an objective
standard of reasonableness.
4. Likewise, even if the exchange of information at
issue in this matter occurred at a “critical stage” of
the proceeding, the Defendant has not shown that
the alleged deficient performance prejudiced the
defense in such a way as will deprive the defendant
of a fair trial.
5. The Defendant was represented by competent
counsel who afforded him effective, reasonable, and
professional representation.
6. None of the Defendant’s rights under the United
States Constitution, North Carolina Constitution, or
the North Carolina General Statutes were violated.
Additionally, in its subsequent ruling on the State’s motion in limine and
defendant’s oral motions regarding the admissibility of evidence relating to the
disclosure, the trial court considered further arguments and evidence, including the
testimony of Captain Kimble, as well as that of defendant’s original attorneys, Rogers
and Brewer. At this hearing, defendant reasserted his ineffective assistance of
counsel argument; however, he did not testify at the hearing. In an order entered on
16 May 2013, the trial court made the following relevant findings:
5. During their representation of the Defendant, Mr.
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Brewer and Mr. Rogers talked to the Defendant
while he was in jail about cooperating with the police
in looking for Shaniya Davis. They discussed how
the Defendant might benefit from cooperating with
the police on this issue by avoiding the imposition
and execution of the death penalty. During these
discussions, the Defendant specifically authorized
his attorneys, Brewer and Mr. Rogers, to give
information to the police relating to the location of
Shaniya Davis. Nothing about their discussions
suggests that the Defendant involuntarily provided
the information at issue to his attorneys.
....
9. The Defendant authorized his attorneys to
communicate information to the police that would
aid them in locating Shaniya Davis. The Defendant
did not authorize his attorneys to make any
admissions on his behalf, and they did not make any
admissions on his behalf. Neither Mr. Rogers nor
Mr. Brewer told Captain Kimble the specific source
of the information as to the directions where to
search. As this Court has previously found and
concluded in its prior Order relating to the
Defendant’s Motion for Specific Performance, the
State of North Carolina, through the District
Attorney’s office, never offered any deal, plea
concessions, immunity, or any other incentives to
the Defendant for this information, and neither Mr.
Brewer nor Mr. Rogers ever communicated any deal,
plea concessions, or any other incentives from the
State to the Defendant.
....
17. Under the totality of the circumstances, the
Defendant’s attorneys did not ineffectively assist the
Defendant in providing information to law
enforcement concerning the location of Shaniya
Davis’ body without an agreement of some kind as to
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Opinion of the Court
what would happen should the Defendant provide
that information.
18. The Defendant’s provision of such information to law
enforcement through his attorney at that stage in
the search for Shaniya Davis was objectively
reasonable in that it provided the State a basis for it
to consider future plea negotiations with the
Defendant should the Defendant be charged with
more offenses related to the missing child during
which negotiations the death penalty might be
eliminated from the range of possible punishments.
The provision of such information was also
objectively reasonable in that it provided the
Defendant the opportunity to obtain the benefit of a
mitigating circumstance should charges be brought
against the Defendant for which the death penalty
was a possible punishment.
19. The Defendant was represented by competent
counsel who afforded him effective, reasonable, and
professional representation.
20. In keeping with this Court’s prior Order on the
Defendant’s claim of ineffective assistance of
counsel, the Court adopts and incorporates by
reference all of its findings of fact and conclusions of
law in this Order as if fully set forth herein. In so
doing, the Court again does not find or conclude that
any ineffective assistance of counsel has occurred.
The Defendant has not shown that the advice and
conduct of his attorneys fell below an objective
standard, and the Defendant has not shown any
prejudice. Even if the Defendant is prejudiced by the
disclosure of this information, he has also benefited
by the disclosure of this information in that the
State offered to allow the Defendant to plead guilty
and avoid the death penalty. He received that
benefit. Further assuming that the Defendant could
show prejudice, the Court does not find ineffective
assistance of counsel. This finding is without
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prejudice to the Defendant and may be raised on
appeal.
21. Furthermore, the Court finds that the Defendant’s
attorneys were not ineffective in their
representation of the Defendant as the Defendant
made a voluntary strategic decision to provide the
information at issue so as to obtain the benefit of
avoiding the imposition and execution of the death
penalty. The Defendant may also receive a future
benefit of this disclosure if he is convicted of first
degree murder and thereby faces a sentencing
hearing in that the disclosure of the information as
to the location of Shaniya Davis may be offered as a
mitigating circumstance to the jury.
From these findings, the trial court made the following conclusions, in relevant
part:
7. Under the totality of the circumstances, the
Defendant’s attorneys did not ineffectively assist the
Defendant in providing information to law
enforcement concerning the location of Shaniya
Davis’ body without an agreement of some kind as to
what would happen should the Defendant provide
that information.
8. The Defendant’s provision of such information to law
enforcement through his attorney at that stage in
the search for Shaniya Davis was objectively
reasonable in that it provided the State a basis for it
to consider future plea negotiations with the
Defendant should the Defendant be charged with
more offenses related to the missing child during
which negotiations the death penalty might be
eliminated from the range of possible punishments.
The provision of such information was also
objectively reasonable in that it provided the
Defendant the opportunity to obtain the benefit of a
mitigating circumstance should charges he brought
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against the Defendant for which the death penalty
was a possible punishment.
9. The Defendant was represented by competent
counsel who afforded him effective, reasonable, and
professional representation.
10. In keeping with this Court’s prior Order on the
Defendant’s claim of ineffective assistance of
counsel, the Court adopts and incorporates by
reference all of its findings of fact and conclusions of
law in this Order as if fully set forth herein.
11. The Defendant has not shown that the advice and
conduct of his attorneys fell below an objective
standard, and the Defendant has not shown any
prejudice. Even if the Defendant is prejudiced by the
disclosure of this information, he has also benefited
by the disclosure of this information in that the
State offered to allow the Defendant to plead guilty
and avoid the death penalty. He received that
benefit. Further assuming that the Defendant could
show prejudice, there was no ineffective assistance
of counsel.
12. Furthermore, the Defendant’s attorneys were not
ineffective in their representation of the Defendant
as the Defendant made a voluntary strategic
decision to provide the information at issue so as to
obtain the benefit of avoiding the imposition and
execution of the death penalty. The Defendant may
also receive a future benefit of this disclosure if he is
convicted of first degree murder and thereby faces a
sentencing hearing in that the disclosure of the
information as to the location of Shaniya Davis may
he offered as a mitigating circumstance to the jury.
....
14. None of the Defendant’s rights under the United
States Constitution, North Carolina Constitution, or
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the North Carolina General Statutes were violated.
Here defendant does not challenge any of the trial court’s findings of fact, but rather,
he disputes the trial court’s ultimate determination that he did not receive
constitutionally deficient counsel under Strickland.
A. Benefit of Disclosure
Defendant initially attempts to meet his burden under the first Strickland
prong by arguing that his attorneys’ conduct was deficient because they “handed the
State the single most incriminating piece of evidence against [defendant] without
even seeking any benefit or protection for [defendant] in return.” Defendant points
out that Rogers testified that he never tried to get any type of agreement from the
State before disclosing the information. Defendant asserts that under the
“[p]revailing norms of practice,” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.
Ed. 2d at 694, his attorneys had a duty to seek or secure a benefit for him in exchange
for the disclosure, and that their breach of this duty was constitutionally deficient.
We disagree.
In making this argument, defendant relies upon the American Bar Association
(ABA) Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases, as they were applicable at the time. See id. at 688, 104 S. Ct. at 2065, 80 L.
Ed. 2d at 694 (“Prevailing norms of practice as reflected in American Bar Association
standards and the like, e. g., ABA Standards for Criminal Justice 4–1.1 to 4–8.6 (2d
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ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but
they are only guides.”). Specifically, Guideline 10.5.B.2 provided:
Promptly upon entry into the case, initial counsel should
communicate in an appropriate manner with both the
client and the government regarding the protection of the
client’s rights against self-incrimination, to the effective
assistance of counsel, and to preservation of the attorney-
client privilege and similar safeguards.
Additionally, Guideline 10.9.1 provided, in relevant part:
A. Counsel at every stage of the case have an obligation
to take all steps that may be appropriate in the
exercise of professional judgment in accordance with
these Guidelines to achieve an agreed-upon
disposition.
B. Counsel at every stage of the case should explore
with the client the possibility and desirability of
reaching an agreed-upon disposition. In so doing,
counsel should fully explain the rights that would
be waived, the possible collateral consequences, and
the legal, factual, and contextual considerations that
bear upon the decision.
Defendant also relies upon the ABA Standards for Criminal Justice, Prosecution
Function and Defense Function applicable at that time. Specifically, Standard 4-3.6,
entitled “Prompt Action to Protect the Accused,” provided, inter alia:
Many important rights of the accused can be
protected and preserved only by prompt legal action.
Defense counsel should inform the accused of his or her
rights at the earliest opportunity and take all necessary
action to vindicate such rights.
While these provisions, which undoubtedly furnish sound guidance to defense
attorneys in criminal cases, are perhaps broader in scope than the specific duty
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contemplated by defendant here, they do in general terms tend to support defendant’s
assertion that defense counsel should protect their client’s rights by pursuing benefits
in return for the disclosure of potentially incriminating information.
Yet, to the extent that counsel has a duty to seek a benefit in exchange for
disclosing such information, it is plain that defendant’s attorneys did seek a benefit
in exchange for the disclosure of Shaniya’s location—the purpose of the disclosure
was to show that defendant could demonstrate cooperation and remorse, which would
benefit defendant in the form of achieving a plea agreement for a life sentence or as
a mitigating circumstance, and ultimately, to avoid the imposition of the death
penalty. This was the “agreed-upon disposition,” ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases 10.9.1
(Feb. 2003), which defendant later repudiated when he rejected the State’s plea offer
of life in prison and refused to present mitigating evidence at trial.
Despite defendant’s assent at the time of the disclosure, he argues on appeal
that a plea agreement for life in prison so as to avoid the death penalty was not a
reasonable objective that would justify the disclosure of incriminating information at
that stage of the case because his attorneys were aware he had denied causing
Shaniya any harm and because, according to defendant, “everything turned” on his
innocence defense. This contention, however, is difficult to square with the record,
because his attorneys were also aware that he had in essence confessed to kidnapping
a five-year-old child from her home in the middle of the night and taking her to a
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remote hotel where he was the last and only person to be seen with Shaniya.
Moreover, they were aware of the fact that he possessed information on the remote
location of Shaniya, though he was unwilling to disclose how he had acquired that
information, and that this information directed law enforcement to search a more
specific area in the same vicinity in which an extensive search tracking defendant’s
cell phone data was already underway, suggesting that an incriminating discovery
could be imminent. Even if defendant possessed a reasonable explanation for his
actions that could exculpate him from directly causing harm to Shaniya, he was, at a
minimum, likely to face charges of felony murder if, as feared, Shaniya was found
deceased. Thus, while the disclosure certainly would be incriminating to defendant
and could lead to the discovery of additional incriminating evidence against him, as
proved to be the case here, the disclosure must be viewed in light of the already
heavily incriminating evidence against defendat, as well as the apparent likelihood
that the discovery of further incriminating evidence could be forthcoming.
Similarly, defendant argues that the “agreed-upon disposition” was inadequate
in that his attorneys should have endeavored to obtain a more favorable outcome.
For example, defendant argues that his attorneys should have attempted to secure
an agreement from the State to proceed noncapitally, which he alleges would have
both protected him from imposition of the death penalty and preserved his ability to
assert a defense of factual innocence. But defendant fails to explain how making the
disclosure with such an agreement in place would have in any way affected his ability
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to assert a defense of factual innocence. Here defendant was not required to plead
guilty absent such an agreement; rather, he was free to put on any available evidence
of his innocence, just as he would have been had the State proceeded noncapitally.
Additionally, defendant asserts that his attorneys should have attempted to
secure a non-attribution agreement, which could have limited the State’s use of any
evidence regarding the disclosure solely to impeachment purposes at trial, or a proffer
letter, which could have provided that the prosecutors would not use anything that
defendant or his lawyers told them against defendant during the case-in-chief.
Whether prosecutors would have been amenable to these considerations is
speculative, but given the nature of the situation at that time—with the ongoing
search for Shaniya and the considerable evidence against defendant—we are deeply
skeptical. Moreover, while we recognize that in many situations it would make
strategic sense to attempt to negotiate for the best possible agreement before
disclosing potentially incriminating information, that is not necessarily true in
situations when, as here, time was a substantial factor. Had law enforcement located
Shaniya before defendant’s disclosure, the opportunity to obtain any benefit in return
for defendant’s information would have been irrevocably lost. Additionally, given
that defendant was denying causing any harm to Shaniya, there was the possibility,
however remote, that Shaniya was still alive.
Defendant attempts to minimize the role of time as a factor by suggesting that
Shaniya might never have been discovered absent the disclosure, pointing to several
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of the State’s arguments at trial. For instance, defendant notes that the State argued
at trial that Shaniya’s body was “well hidden,” “hardly visible,” and “was very difficult
to find -- and may not have been found without this information. Authorities had
been searching in that general area and had not been able to locate the victim prior
to this information.” Given that a massive search was underway in the same general
area in which Shaniya was ultimately discovered, we are skeptical of defendant’s
claim. More importantly, however, entertaining this type of speculative argument
would be contrary to our mandate that “every effort be made to eliminate the
distorting effects of hindsight” and “to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d
at 694. The information Rogers and Brewer received from defendant directed law
enforcement to search a more specific area in the same vicinity in which an extensive
search was already underway at that time, suggesting that a discovery could very
well be imminent. Rogers and Brewer could in no way anticipate how well hidden or
how difficult to discover the body of Shaniya might be, nor could they have anticipated
receiving that information from defendant, who denied causing any harm to Shaniya.
See Sneed, 284 N.C. at 614, 201 S.E.2d at 872 (“We think that the attorney-client
relationship is such that when a client gives his attorney facts constituting a defense,
the attorney may rely on the statement given unless it is patently false.”).
In sum, we cannot agree with defendant that it was unreasonable for his
attorneys to target a plea agreement for life in prison and the avoidance of the death
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penalty in exchange for making the disclosure. We note that the commentary to
Guideline 10.9.1 from the same ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases cited by defendant, states:
“Death is different because avoiding execution is, in
many capital cases, the best and only realistic result
possible”; as a result, plea bargains in capital cases are not
usually “offered” but instead must be “pursued and won.”
Agreements are often only possible after many years of
effort. Accordingly, this Guideline emphasizes that the
obligation of counsel to seek an agreed-upon disposition
continues throughout all phases of the case.
(Footnote call number omitted.) Certainly, the decision to consider a client’s situation
as a potential capital case and seek a disposition accordingly is not one to be taken
lightly; on that account, we note that, as found by the trial court, Rogers and Brewer
were both experienced criminal defense attorneys. See Strickland, 466 U.S. at 681,
104 S. Ct. at 2061, 80 L. Ed. 2d at 689 (“Among the factors relevant to deciding
whether particular strategic choices are reasonable are the experience of the attorney
. . . .”). We hold only that under the unique and difficult circumstances here—with
the already heavily incriminating evidence against defendant, as well as the apparent
likelihood that the discovery of further incriminating evidence could be imminent—
and “indul[ging] a strong presumption that [defendant’s attorneys’] conduct falls
within the wide range of reasonable professional assistance,” Id. at 689, 104 S. Ct. at
2065, 80 L. Ed. 2d at 694, Rogers and Brewer’s decision to disclose potentially
incriminating information with the sought-after goal of avoiding imposition of the
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death penalty did not fall below “an objective standard of reasonableness,” id. at 688,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Whether defendant’s attorneys erred in not first securing, or attempting to
secure, a plea agreement for life in prison before making the disclosure is a separate
and more difficult question. On the one hand, as we have previously noted, any
negotiations with prosecutors may have been an uphill battle and would have been
further complicated by the issue of time. On the other hand, a plea agreement for life
in prison would likely have been a more attainable benefit than the alternatives
proffered by defendant in his brief (a non-attribution agreement or a proffer letter).
Additionally, without any agreement firmly in place, defendant’s attorneys exposed
him to the possibility of further incrimination without any guaranteed benefit save
for the existence of potential mitigating evidence at trial. Yet, we need not answer
this question because, given that we have held that a plea agreement for life in prison
and avoidance of the death penalty was a reasonable disposition in these
circumstances, defendant cannot establish any prejudice when the State did offer
defendant a plea agreement for life in prison. That is—even assuming arguendo that
defendant’s attorneys were deficient in disclosing the information without any plea
agreement in place, defendant cannot show “a reasonable probability that, but for
[his attorneys’] unprofessional errors, the result of the proceeding would have been
different” when the very result that was desired did materialize and was rejected by
defendant’s own choice. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
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B. Adequate Investigation
Defendant next argues that his attorneys were deficient in their performance
because they failed to conduct an adequate investigation before disclosing to police
where to search for Shaniya when they were only one day into their representation
of defendant. See id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695 (“[C]ounsel has a
duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.”) According to defendant, “everything turned”
on his innocence defense, and his attorneys had a duty to adequately investigate that
defense before destroying it by disclosing incriminating evidence to the State.
Defendant argues that this disclosure was contrary to the applicable ABA guidelines,
under which attorneys should investigate issues of guilt regardless of overwhelming
evidence against a defendant or the defendant’s own admissions or statements
constituting guilt.
Defendant’s assertions, however, are not borne out by the record. For example,
defendant argues that Rogers failed to look at any formal discovery materials before
making the disclosure. Yet, Rogers testified that at that early stage in the
investigation, there was no discovery file to examine. Similarly, defendant seizes
upon Rogers’s response that he was unaware that defendant had at one point denied
being the person depicted in photographs from the hotel, alleging that this statement
demonstrates Rogers’s failure to investigate defendant’s claims of innocence. But we
can find little significance in Rogers’s statement. Defendant’s “denial” occurred when
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he was first confronted with photographs of himself and Shaniya taken from the
Comfort Suites video footage. Defendant briefly attempted to claim that the person
in the videos was someone who looked just like him, had somehow stolen his I.D. and
car, and had signed into the hotel with defendant’s name. Defendant quickly
admitted it was he in the photographs, and then tried to claim he was delivering
Shaniya to an unknown third party at the direction of text messages, which were not
on defendant’s phone and of which there is no record. Defendant fails to explain how
Rogers’s ignorance of defendant’s short-lived denial of a fact relating to the
kidnapping—a fact that was plainly apparent from available evidence, to which
defendant shortly thereafter admitted and to which he later stipulated at trial—
demonstrates any failure by Rogers to adequately investigate issues of defendant’s
guilt or innocence on the issue of murder.
Apart from defendant’s brief denial, defendant is unable to identify anything
that Rogers’s allegedly inadequate investigation failed to uncover and which would
have had any effect on the reasonableness of his attorneys’ strategic decision to make
the disclosure. See Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at
695 (“[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”). Nor
does defendant suggest precisely what other investigative avenues Rogers and
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Brewer should have pursued. Rogers and Brewer discussed defendant’s situation
with him, and Rogers testified that he had conversations with Kimble to gauge the
status of the investigation as it related to defendant’s involvement. From these
investigations, defendant’s attorneys learned that defendant had kidnapped Shaniya
in the middle of the night, and taken her to a hotel where he was the last person to
be seen with her, and that searchers were presently conducting a massive, ongoing
attempt to locate Shaniya by combing through the areas revealed by defendant’s cell
phone data. We conclude that defendant’s attorneys’ strategic choice here to disclose
where to look for Shaniya was “made after thorough investigation of law and facts
relevant to plausible options.” Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Even if defendant was able to identify some additional investigative steps his
attorneys could have taken and to demonstrate that counsel engaged in a “less than
complete investigation,” we conclude that, given that time was a significant factor
here, “reasonable professional judgments” would have “support[ed] the limitations on
investigation.” Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
C. Source of Disclosure
Next, defendant asserts that his attorneys erroneously advised him that they
would shield his identity as the source of the information but that their method of
disclosure revealed him as the source. Defendant argues that by doing so, his
attorneys violated the Rules of Professional Conduct and the applicable ABA
guidelines requiring a client’s informed consent before lawyers may reveal
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information acquired during the professional relationship. See, e.g., N.C. St. B. Rev.
R. Prof’l Conduct r. 1.6(a) (2018 Ann. R. N.C. 1183, 1205) (“A lawyer shall not reveal
information acquired during the professional relationship with a client unless the
client gives informed consent . . . .”).
In support of his argument, defendant points to this exchange between Terry
Alford, defendant’s trial attorney, and Rogers at the hearing:
Q And so the discussion that you had with Mr. McNeill
concerning the information, the authority that you had was
to convey the information but not to reveal the source; is
that correct?
A That was certainly our intent. And my recollection
was just conveying the information, not saying Mario
McNeill said anything or any specific person.
Q Right. And he never specifically gave you
permission to be able to say the information came from
him, did he?
A He did not specifically say, convey the information
came from me.
Defendant asserts that because they agreed not to explicitly name him as the source
of the disclosure, this agreement necessarily implied that his attorneys would not
allow evidence from the disclosure to be attributed to him, either directly or by
inference. According to defendant, this is reflected in Finding of Fact 9 from the trial
court’s 16 May 2013 order, in which the trial court found that defendant “did not
authorize his attorneys to make any admissions on his behalf.”
The record, however, cannot support defendant’s characterization of the
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agreement as being conditioned upon his attorneys’ implicit promise that they would
prevent the disclosure from being attributed to defendant, even by inference. Indeed,
the entire purpose of the disclosure, to which defendant agreed, was that it be
attributable to defendant to show cooperation on his part. Immediately before the
portion of the hearing relied upon by defendant, Rogers testified:
Q That was the way it was done by Mr. Brewer is that
he gave it as a recommendation. He didn’t say where the
information come from; is that correct?
A That is correct. And that is my best recollection of
what I did so as well.
Q In other words, the information that you were
relaying to the police was intended to be information you
received from someone, but you did not want to relay who
that came from; is that correct?
A That’s correct.
Q At any time when you were talking to the
authorities, did you tell them who it came from?
A No. No, I didn’t.
Q So any belief that someone may have that
information you gave them came from Mr. McNeill would
be their speculation. You never specifically said where it
came from, did you?
A No, I didn’t.
Q That was because you weren’t authorized by Mr.
McNeill to specifically tell someone where that information
came from, were you?
A No, that’s not true. We were authorized.
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Q You were authorized to do what?
A We were authorized to disclose the information.
Q But were you authorized to disclose the source of the
information?
A In our conversation prior to disclosing the
information, it was decided that the information would be
provided without specifically stating the source.
Q And that’s the way Mr. Brewer did it, and that was
your intention of doing it also, not to provide the source,
correct?
A That’s correct.
(Emphasis added.) Rogers further explained that while it was agreed to convey the
information without “specifically stating the source,” they were also not trying to hide
defendant’s role in furnishing the information. As Rogers testified at the hearing:
Q And when you’re talking about getting mitigating
information for the defendant, Mario McNeill, to use or to
set him up down the road with having the benefit of having
been helpful in providing her body, that sort of thing --
A Yes.
Q -- right? Being cooperative. He could be claimed to
be cooperative, right?
A That’s correct.
Q You’re not hiding from Captain Kimble who you’re
getting the information from?
A No, I’m not.
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Q You won’t be able to claim any credit, or he won’t be
able to claim any credit down the road should he need it if
it’s a mystery as to where the information is coming from,
right?
A That’s correct.
In light of Rogers’s testimony and the agreed-upon purpose of the disclosure, the fact
that defendant and his attorneys agreed not to explicitly name defendant as the
source of the disclosure cannot be read as an implicit understanding that his
attorneys would shield him as the source but rather must be read in the context of
their conversation, in which defendant told his attorneys that he had information
about Shaniya’s location but did not explain how he had acquired that information,
and in which defendant was “denying that he was involved in hurting [Shaniya] or
killing her.” The method of disclosure allowed an immediate inference of cooperation
but avoided any inadvertent admission of guilt. While defendant relies heavily upon
a portion of Finding of Fact 9, the trial court’s full sentence from that finding states
that “[t]he Defendant did not authorize his attorneys to make any admissions on his
behalf, and they did not make any admissions on his behalf.” (Emphasis added.)
Similarly, in its previous order from 17 April 2013, the trial court found that
defendant “authorized Mr. Rogers to provide that specific information to law
enforcement” and that “[t]he Defendant’s information . . . did not constitute an
admission to a crime.” (Emphasis added.) Thus, while the record establishes that
defendant’s attorneys were not authorized to make any admissions of guilt to any
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crimes on behalf of defendant, it does not support defendant’s assertion that they
advised him they would shield his identity as the source of the information.
Certainly, that the information came from defendant’s attorneys allowed an
inference that defendant was the source, which, while demonstrating immediate
cooperation on the part of defendant, was also potentially incriminating as it
suggested an inference of guilt. But this trade-off goes to the heart of the agreed-
upon strategy—the mounting evidence against defendant was already highly
incriminating, and providing this information to the police that could potentially be
further incriminating was a strategic decision made to avoid imposition of the death
penalty.
Whether defendant’s attorneys should have advised him to adopt a different
strategy that attempted to disclose the information anonymously and to shield
defendant’s identity as the source—perhaps until the sentencing proceeding of a
capital trial—is a separate question not specifically raised by defendant, but on these
facts we can see little to be gained, and more importantly, no constitutional
deficiency, in failing to take such a course. Defendant’s attorneys clearly believed
that disclosing the information without hiding his identity was the best way to
demonstrate cooperation and receive a benefit for the information while avoiding any
overt suggestion of guilt on the part of defendant. Either defendant possessed an
exculpatory explanation as to how he had acquired information on Shaniya’s location,
which he was at that point unwilling to share with his attorneys, or he did not. If he
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was being truthful with his attorneys in denying causing any harm to Shaniya, then
he did possess such an explanation, and his attorneys’ overt omission of his name in
making the disclosure cleared the path for him to rebut the inference of guilt via any
available evidence that an unnamed third party was the ultimate source of the
information. This was the scenario defendant argued in his closing, albeit without
any evidentiary support.
Ineffective Assistance of Counsel Conclusion
In sum, we conclude that defendant has failed to meet his burden under
Strickland and we find no error in the trial court’s ruling. The strategy employed by
Rogers and Brewer here, to which defendant agreed, was a result of their “trying to
give [defendant] the best advice [they could] to try to help save his life.” Significantly,
defendant agreed with this strategy, and he received the very benefit sought by this
strategy when the State later offered him a plea agreement for life in prison, which
defendant twice declined. Defendant also declined to present any mitigating evidence
in the sentencing proceeding of the trial, thus rejecting a further benefit contemplated
by his agreed-upon strategy. Accordingly, defendant’s ineffective assistance of
counsel claim is overruled.
Cronic claim
In addition to arguing that he received ineffective assistance of counsel under
Strickland, defendant also argues that he received ineffective assistance under the
standard set forth in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed.
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2d 657 (1984). In Strickland the Court considered “claims of ineffective assistance
based on allegations of specific errors by counsel—claims which, by their very nature,
require courts to evaluate both the attorney’s performance and the effect of that
performance on the reliability and fairness of the proceeding.” Strickland, 466 U.S.
at 702, 104 S. Ct. at 2072, 80 L. Ed. 2d at 703 (Brennan, J., concurring in the opinion).
On the other hand, in Cronic the Court considered ineffective assistance of counsel
claims in the context of cases in which there is a “complete denial of counsel,” “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or
“the surrounding circumstances [make] it so unlikely that any lawyer could provide
effective assistance that ineffectiveness [is] properly presumed without inquiry into
actual performance at trial.” Cronic, 466 U.S. at 659-61, 104 S. Ct. at 2047-48, 80 L.
Ed. 2d at 668-69.
Defendant argues that his attorneys, by disclosing of the location of Shaniya
to police without first securing any benefit in return, were essentially working for the
police and that this situation resulted in a breakdown of the adversarial process
under Cronic. We are unpersuaded. Defendant’s challenge is more properly brought
as an allegation of a specific error under Strickland, which we have already
addressed. Moreover, for the reasons previously stated, we conclude that the
attorneys’ disclosure was a reasonable strategic decision made in the course of their
representation of defendant and certainly did not amount to a “breakdown in the
adversarial process that would justify a presumption that respondent’s conviction
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was insufficiently reliable to satisfy the Constitution.” Id. at 662, 104 S. Ct. at 2049,
80 L. Ed. 2d at 670.
Attorney-Client Privilege
Defendant next argues that the information regarding the location of Shaniya
was inadmissible by virtue of the attorney–client privilege. “It is an established rule
of the common law that confidential communications made to an attorney in his
professional capacity by his client are privileged, and the attorney cannot be
compelled to testify to them unless his client consents.” Dobias v. White, 240 N.C.
680, 684, 83 S.E.2d 785, 788 (1954) (citations omitted). Significantly, however, “not
all communications between an attorney and a client are privileged,” In re
Investigation of Miller, 357 N.C. 316, 335, 584 S.E.2d 772, 786 (2003) (citations
omitted), but rather, “[o]nly confidential communications are protected,” Dobias, 240
N.C. at 684, 83 S.E.2d at 788 (emphasis added). “For example, . . . if it appears that
a communication was not regarded as confidential or that the communication was
made for the purpose of being conveyed by the attorney to others, the communication
is not privileged.” In re Miller, 357 N.C. at 335, 584 S.E.2d at 786 (citing State v.
McIntosh, 336 N.C. 517, 524, 444 S.E.2d 438, 442 (1994)).
The party asserting the privilege has the burden of establishing each of the
essential elements of a privileged communication. Id. at 336, 584 S.E.2d at 787
(quoting 1 Scott N. Stone & Robert K. Taylor, Testimonial Privileges § 1.61, at 1–161
(2d ed. 1994) (citations omitted) (“This burden may not be met by ‘mere conclusory or
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ipse dixit assertions,’ or by a ‘blanket refusal to testify.’ Rather, sufficient evidence
must be adduced, usually by means of an affidavit or affidavits, to establish the
privilege with respect to each disputed item.”)). This Court has held that the
elements of a privileged communication are:
(1) the relation of attorney and client existed at the time
the communication was made, (2) the communication was
made in confidence, (3) the communication relates to a
matter about which the attorney is being professionally
consulted, (4) the communication was made in the course
of giving or seeking legal advice for a proper purpose
although litigation need not be contemplated and (5) the
client has not waived the privilege.
State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981) (citation omitted).
Finally, “the responsibility of determining whether the attorney-client privilege
applies belongs to the trial court.” In re Miller, 357 N.C. at 336, 584 S.E.2d at 787
(citing Hughes v. Boone, 102 N.C. 137, 160, 9 S.E. 286, 292 (1889)).
Here the trial court determined that defendant failed to meet his burden of
demonstrating that the information he provided to his attorneys concerning the
location of Shaniya was privileged. In its order denying defendant’s Motion to
Require Specific Performance or, Alternatively, to Suppress Statements and
Evidence, the trial court found as fact:
6. During Mr. Rogers’ representation, the Defendant
provided specific information to Mr. Rogers as to the
location of Shaniya Davis’ body, and the Defendant
authorized Mr. Rogers to provide that specific
information to law enforcement.
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7. Pursuant to the Defendant’s authorization, Mr.
Rogers provided to law enforcement that specific
information as to the location of Shaniya Davis’
body.
8. The Defendant’s information regarding the location
of Shaniya Davis’ body did not constitute an
admission to a crime.
In its second order, the trial court adopted and incorporated all of its findings from
its previous order, and additionally found as fact:
5. During their representation of the Defendant, Mr.
Brewer and Mr. Rogers talked to the Defendant
while he was in jail about cooperating with the police
in looking for Shaniya Davis. They discussed how
the Defendant might benefit from cooperating with
the police on this issue by avoiding the imposition
and execution of the death penalty. During these
discussions, the Defendant specifically authorized
his attorneys, Brewer and Mr. Rogers, to give
information to the police relating to the location of
Shaniya Davis. Nothing about their discussions
suggests that the Defendant involuntarily provided
the information at issue to his attorneys.
....
9. The Defendant authorized his attorneys to
communicate information to the police that would
aid them in locating Shaniya Davis. The Defendant
did not authorize his attorneys to make any
admissions on his behalf, and they did not make any
admissions on his behalf. Neither Mr. Rogers nor
Mr. Brewer told Captain Kimble the specific source
of the information as to the directions where to
search. . . . .
....
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15. Contrary to the Defendant’s argument, the
Defendant did not meet his burden of demonstrating
that the statements at issue were privileged
communications. The evidence shows that they do
not fall within the protection of the attorney-client
privilege because they were not confidential. The
statements at issue were not regarded by the
Defendant and his attorneys as confidential as they
were made for the purpose of being conveyed by the
attorney to others and were therefore not privileged.
16. Even assuming that the attorney-client privilege
existed, the Defendant waived the privilege in
respect to the information given to the police for the
sole purpose of allowing his attorneys to share the
information with the police. This information was
not given in exchange for any plea deal, dismissal of
charges, immunity, or any other incentive or
inducement offered by the State, and this
information was not given during any plea
negotiations with the District Attorney or any of his
staff under N.C. Gen. Stat. § 8C-1, Rule 410.
....
22. The Defendant waived the attorney-client privilege
in that he specifically intended the information that
he gave to his attorneys about the location of
Shaniya Davis be shared with the authorities for the
sole purpose of locating Shaniya Davis, the
Defendant authorized the limited disclosure of this
information for that limited purpose, there is no
evidence of any deal to disclose this information, the
disclosure was not the result of plea negotiations,
the disclosure was voluntary, and there is no
evidence of the Defendant’s motive for the disclosure
other than an interest on the part of the Defendant
that Shaniya Davis would be found and that he
might avoid the imposition and execution of the
death penalty.
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23. The defendant has not waived his privilege in regard
to his attorneys testifying in this case on the trial on
the merits.
Based upon these findings of fact, the trial court concluded:
4. The Defendant waived the attorney-client privilege
as to some of this information. As to the information
that Mr. Brewer and Mr. Rogers supplied to Captain
Kimble, the attorney-client privilege did not exist
because the information was not given to the
attorneys in confidence as the Defendant voluntarily
gave the information to his attorneys for the purpose
of his attorneys sharing it with the police, and even
if the attorney-client privilege did exist, that the
defendant waived the attorney-client privilege so
that his attorneys could share that information with
the authorities.
....
13. The Defendant waived the attorney-client privilege
in that he specifically intended the information that
he gave to his attorneys about the location of
Shaniya Davis he shared with the authorities for the
sole purpose of locating Shaniya Davis, the
Defendant authorized the limited disclosure of this
information for that limited purpose, there is no
evidence of any deal to disclose this information, the
disclosure was not the result of plea negotiations,
the disclosure was voluntary, and there is no
evidence of the Defendant’s motive for the disclosure
other than an interest on the part of the Defendant
that Shaniya Davis would be found and that he
might avoid the imposition and execution of the
death penalty.
14. None of the Defendant’s rights under the United
States Constitution, North Carolina Constitution, or
the North Carolina General Statutes were violated.
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We conclude that the trial court correctly determined that the information was not
protected by attorney–client privilege. Specifically, the testimony of Rogers and
Brewer plainly establishes that defendant communicated the information to them
with the purpose that it be relayed to law enforcement to assist in the search for
Shaniya. Accordingly, the evidence establishes that defendant’s communication of
the information to his attorneys “was made for the purpose of being conveyed by the
attorney[s] to others,” and as a result, “the communication is not privileged.” In re
Miller, 357 N.C. at 335, 584 S.E.2d at 786 (citing McIntosh, 336 N.C. at 524, 444
S.E.2d at 442).
Nonetheless, defendant argues on appeal that any waiver of the privilege on
his part (or any intention that the information be conveyed to others) was made under
the condition that he not be revealed as the source of the information. Defendant
contends that his attorneys breached this condition by disclosing the information
without protecting his identity as the source, rendering any waiver a nullity and
leaving intact the privileged status of the information. Defendant further asserts
that, at a minimum, his identity as the source of the information was privileged and
should have been protected against any comment or infringement by the State.
According to defendant, the trial court, by allowing evidence at trial that the
information came from his attorneys and by allowing the State to argue inferences of
guilt from that evidence, deliberately invaded the attorney–client relationship and
violated his federal and state rights to counsel under the Sixth Amendment to the
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United States Constitution and Article I, Section 23 of the North Carolina
Constitution.
Defendant’s contentions, however, are again premised on the same portions of
the record on which he based his previous argument that his attorneys breached their
duty of confidentiality10 and provided ineffective assistance of counsel. For instance,
defendant again refers to the trial court’s Finding of Fact 9, which states that
defendant “did not authorize his attorneys to make any admissions on his behalf.”
Yet, as noted above, this finding, in which the trial court continued by stating “and
they did not make any admission on his behalf,” references admissions to a crime. As
we have previously concluded, while the record establishes that defendant’s attorneys
10 While the attorney–client privilege and the ethical duty of confidentiality are
related principles, they are not synonymous, and the applicability here of the former is
questionable given that the disclosure of purportedly confidential information was not made
pursuant to compulsion of law over the objection of defendant, but rather was made
voluntarily and out of court. See N.C. St. B. Rev. R. Prof’l Conduct r. 1.6(a) cmt. 3 (2018 Ann.
R. N.C. at 1205) (“The principle of client-lawyer confidentiality is given effect by related
bodies of law: the attorney-client privilege, the work product doctrine and the rule of
confidentiality established in professional ethics. The attorney-client privilege and work-
product doctrine apply in judicial and other proceedings in which a lawyer may be called as
a witness or otherwise required to produce evidence concerning a client. The rule of client-
lawyer confidentiality applies in situations other than those where evidence is sought from
the lawyer through compulsion of law. The confidentiality rule, for example, applies not only
to matters communicated in confidence by the client but also to all information acquired
during the representation, whatever its source. A lawyer may not disclose such information
except as authorized or required by the Rules of Professional Conduct or other law.” (citation
omitted)); Dobias, 240 N.C. at 684, 83 S.E.2d at 788 (“It is an established rule of the common
law that confidential communications made to an attorney in his professional capacity by his
client are privileged, and the attorney cannot be compelled to testify to them unless his client
consents.” (emphasis added)). In any event, for the reasons stated above, the information
defendant communicated to his attorneys was not privileged.
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were not authorized to make any admissions of guilt to any crimes on behalf of
defendant, and that they made no such admissions, the record does not support
defendant’s characterization of the agreement as being conditioned upon his
attorneys’ representation that they would prevent the disclosure from being
attributed to defendant, even by inference. Defendant’s arguments to the contrary
are overruled.
Hearsay - Admissions by a Party–Opponent
Defendant next contends that Captain Kimble’s testimony that he received
information on the location of Shaniya from defendant’s attorneys was inadmissible
hearsay and that the trial court erred in denying defendant’s motion to suppress this
testimony. We disagree.
“ ‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C.G.S. § 8C-1, Rule 801(c) (2017); see also id. Rule 801(a) (2017)
(defining “statement” as “(1) an oral or written assertion or (2) nonverbal conduct of
a person, if it is intended by him as an assertion”). “In general, hearsay evidence is
not admissible.” State v. Rivera, 350 N.C. 285, 288-89, 514 S.E.2d 720, 722 (1999)
(citing State v. Wilson, 322 N.C. 117, 131-32, 367 S.E.2d 589, 598 (1988)). An
exception to the hearsay rule exists in Rule 801(d), which provides in pertinent part:
(d) Exception for Admissions by a Party-Opponent.
– A statement is admissible as an exception to the hearsay
rule if it is offered against a party and it is . . . (C) a
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statement by a person authorized by him to make a
statement concerning the subject, or (D) a statement by his
agent or servant concerning a matter within the scope of
his agency or employment, made during the existence of
the relationship[.]
N.C.G.S. § 8C-1, Rule 801(d) (2017).
Here defendant objected to the admission of Kimble’s testimony about
statements made to him by defendant’s attorneys concerning the location of Shaniya
on the basis that, inter alia, such testimony was inadmissible hearsay. The trial court
determined that defendant’s attorneys’ statements to Kimble were admissible under
N.C.G.S. § 8C-1, Rule 801(d). Accordingly, the trial court ordered that:
The State may call Assistant Chief Kimble as a witness,
and he may testify pursuant to N.C. Gen. Stat. § 8C-1, Rule
801(d) about his conversations with Mr. Brewer and Mr.
Rogers inasmuch as these attorneys were the Defendant’s
agents and were authorized by the Defendant to make the
statements at issue . . . .
The trial court did not allow Kimble to testify “as to any feelings about the source of
the information.”
Defendant argues that because the trial court found that he “did not authorize
his attorneys to make any admissions on his behalf,” and yet admitted into evidence
his attorneys’ statements to Kimble pursuant to N.C.G.S. § 8C-1, Rule 801(d) under
the “Admissions by a Party-Opponent” hearsay exception, the trial court erroneously
allowed defendant’s attorneys’ disclosure to be admitted as defendant’s own
statement and to be attributed to him, resulting in prejudice and requiring a new
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trial. (Emphases added.) The consonance of the word “admission” may appear
contradictory here at first glance, but this argument too is without merit.
As previously discussed, in Finding of Fact 9 the trial court determined that
defendant did not authorize his attorneys to make any admissions of guilt to any
crimes and, on that account, “they did not make any admissions on his behalf.” As
the trial court specifically found in its earlier order, defendant “authorized Mr. Rogers
to provide that specific information to law enforcement” and “[t]he Defendant’s
information . . . did not constitute an admission to a crime.” (Emphasis added.) It is
clear that the trial court’s meaning of “admission” in this respect was more akin to a
“confession,” which is “an acknowledgement in express[ed] words by [the] accused in
a criminal case of his guilt [of] the crime charged or of some essential part of it.” State
v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986) (quoting State v. Fox, 277
N.C. 1, 25, 175 S.E.2d 561, 576 (1970)).
In contrast, this Court has defined “admission” in the context of Rule 801(d)
more broadly as “a statement of pertinent facts which, in light of other evidence, is
incriminating.” State v. Lambert, 341 N.C. 36, 50, 460 S.E.2d 123, 131 (1995) (quoting
Trexler, 316 N.C. at 531, 342 S.E.2d at 879-80); see also State v. Chapman, 359 N.C.
328, 355, 611 S.E.2d 794, 816 (2005) (referring to the Rule 801(d) exception when
applied to a defendant’s statement as the “statement of a party opponent” (emphasis
added)); Trexler, 316 N.C. at 531, 342 S.E.2d at 880 (“A confession, therefore, is a type
of an admission.” (citations omitted)). Under this broad definition, the “Admissions
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by a Party-Opponent” hearsay exception encompasses more than mere admissions of
guilt. See, e.g., Chapman, 359 N.C. at 355, 611 S.E.2d at 816 (concluding that the
defendant’s statement to a detective about a threatening telephone call he received
the day after the murder of which he was accused was admissible as the statement
of a party opponent); State v. Collins, 335 N.C. 729, 738, 440 S.E.2d 559, 564 (1994)
(opining that the defendant’s comments concerning his previous statements about
threats he had made to his wife before her death fell within the exception for
admissions by a party opponent). As a result, the trial court’s admitting of
defendant’s attorneys’ statements under Rule 801(d) did not conflict with Finding of
Fact 9, which explicitly found that defendant “did not authorize his attorneys to make
any admissions on his behalf, and they did not.”
Because, as discussed previously, defendant authorized his attorneys to convey
the information to law enforcement, the trial court did not err in admitting the
evidence as “statement[s] by a person authorized by [defendant] to make a statement
concerning the subject.” N.C.G.S. § 8C-1, Rule 801(d)(C). Moreover, consistent with
defendant’s agreement with his attorneys that he not specifically be named as the
source, the trial court did not permit Kimble to testify “as to any feelings about the
source of the information.”11 Certainly, one could infer that defendant was the
11 Defendant argues that admission of the statements under Rule 801(d) means that
they came in as defendant’s own statements and were directly attributable to him. However,
the jury was not informed of the manner in which this evidence was admitted—in other
words, that the statements were authorized by defendant. The jury could only infer that
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ultimate source of information that came from his attorneys. At trial, the State
repeatedly argued this inference; however, as discussed above, this argument was an
inevitable result of the agreed-upon strategy in making the disclosure. Defendant’s
arguments are overruled.
Due Process
Next, defendant argues that the cumulative effect of his original attorneys’
ineffective assistance of counsel, combined with the trial court’s admission into
evidence of testimony that his lawyers disclosed the location of Shaniya to police, as
well as its admission of all evidence recovered from that location and all evidence
derived from the discovery of Shaniya’s body, deprived defendant of a fair trial in
violation of his rights to due process of law under the Fourteenth Amendment to the
United States Constitution and the Law of the Land Clause of the North Carolina
Constitution. Because we have held that defendant did not receive ineffective
assistance of counsel and that the trial court did not err in any evidentiary rulings,
defendant’s contentions are without merit.
Improper Statements During the State’s Closing Argument
Defendant’s next argument concerns two statements made by the State during
closing arguments at the guilt-innocence proceeding of the trial. More specifically,
defendant was the source from the fact that the attorneys who possessed the information
represented him. As previously discussed, while inference was incriminating, it was
permissible in light of the agreed-upon disclosure.
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defendant argues that because these two comments severely prejudiced him, the trial
court abused its discretion in denying his repeated requests for a mistrial. We do not
agree.
A trial court “must declare a mistrial upon the defendant’s motion if there
occurs during the trial . . . conduct inside or outside the courtroom, resulting in
substantial and irreparable prejudice to the defendant’s case.” N.C.G.S. § 15A-1061
(2017). The determination “as to whether substantial and irreparable prejudice has
occurred lies within the sound discretion of the trial judge and . . . will not be
disturbed on appeal absent a showing of abuse of discretion.” State v. Thomas, 350
N.C. 315, 341, 514 S.E.2d 486, 502 (1999) (citing State v. McNeill, 349 N.C. 634, 646,
509 S.E.2d 415, 422 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d
87 (1999)), cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999); see
also State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239, 260 (2008) (“An abuse of
discretion occurs when a ruling is ‘manifestly unsupported by reason, which is to say
it is so arbitrary that it could not have been the result of a reasoned decision.’ ”
(quoting State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998))), cert. denied,
558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009). Further, “[t]he decision of the
trial judge is entitled to great deference since he is in a far better position than an
appellate court to determine the effect of any such error on the jury.” Thomas, 350
N.C. at 341, 514 S.E.2d at 502 (citing State v. King, 343 N.C. 29, 44, 468 S.E.2d 232,
242 (1996)). We also note that “[m]istrial is a drastic remedy, warranted only for such
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serious improprieties as would make it impossible to attain a fair and impartial
verdict.” State v. Smith, 320 N.C. 404, 418, 358 S.E.2d 329, 337 (1987) (quoting State
v. Stocks, 319 N.C. 437, 441, 355 S.E.2d 492, 494 (1987)).
Defendant’s motions for mistrial here were based on statements made by the
prosecutor in the State’s closing arguments. During closing arguments “an attorney
may not become abusive, inject his personal experiences, express his personal belief
as to the truth or falsity of the evidence or as to the guilt or innocence of the
defendant, or make arguments on the basis of matters outside the record.” N.C.G.S.
§ 15A-1230(a) (2017). We have recognized, however, that prosecutors “ ‘are given
wide latitude in the scope of their argument’ and may ‘argue to the jury the law, the
facts in evidence, and all reasonable inferences drawn therefrom.’ ” State v. Goss, 361
N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (quoting State v. Alston, 341 N.C. 198, 239,
461 S.E.2d 687, 709-10 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed.
2d 100 (1996)), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d 58 (2008). The
trial court may ordinarily remedy improper argument with curative instructions
“since it is presumed that jurors will understand and comply with the instructions of
the court,” State v. Young, 291 N.C. 562, 573, 231 S.E.2d 577, 584 (1977) (first citing
State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); then citing State v. Long, 280
N.C. 633, 187 S.E.2d 47 (1972)), though “[s]ome transgressions are so gross and their
effect so highly prejudicial that no curative instruction will suffice to remove the
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adverse impression from the minds of the jurors,” id. at 573-74, 231 S.E.2d at 584
(citations omitted).
Here, during its closing argument in the guilt-innocence proceeding of the trial,
while commenting on defendant’s theory of the crime, the prosecutor stated:
Where was Shaniya’s body found? Off Walker Road, past
Spring Lake before you get to Sanford, exactly where the
defendant’s attorney said you would find the body. So that
would mean that her people, her relatives that are going to
take her to school that morning, they drive her right back
up to Sanford, another 40 minute drive. They just
happened to sexually assault her and dump her body where
the cell phone analysis, where the defendant’s lawyer said
he put the body, where the metal identification says the
body is and where the soil sample identification says the
body is. And that’s all just coincidence? The defense would
have you believe that that’s just coincidence.
(Emphasis added.) During the next recess, out of the presence of the jury, defendant’s
trial attorney objected to the prosecutor’s comment and moved for a mistrial.
Defendant’s attorney argued to the trial court: “You made the lines. You drew the
lines and that went way past the line -- way past the line. His statement was the
body was found where his lawyer said he put the body.” The trial court responded
that it did not hear the comment and asked the court reporter to read back that
portion of the State’s argument. The trial court then stated, “All right. Motion for
mistrial is denied. If you want me to tell them to disregard that, I’ll be glad to tell
them that. I didn’t catch it. I’m not sure how many of them caught it.” Defendant’s
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attorney declined, stating, “No, sir. That would just be drawing more attention to the
error.” The trial court then said:
All right. Let’s bring them in. I have told the jury to
remember the evidence for themselves. If the lawyer says
something they don’t remember from the evidence, they are
to disregard that and abide by their own recollection of the
evidence. Based on that and in my discretion, the motion
for mistrial is denied. And I will give them a cautionary
instruction now -- a general cautionary instruction, not
about that specifically but to -- in general, about remember
the evidence, okay?
When the jury returned, the trial court instructed jurors:
Let me remind you once again that closing arguments are
not evidence. The evidence is what you heard and saw
during the presentation of evidence. If, during the course
of making a final argument, one or more of the attorneys
attempts to restate the evidence or a portion of the evidence
and your recollection of the evidence is different from the
attorneys’, you are to recall and remember the evidence
and be guided exclusively by your own recollection of the
evidence.
Later in the State’s closing argument, the prosecutor asserted:
He killed and left Shaniya on Walker Road. The cell phone
analysis puts him there. The soil sample analysis puts him
there. The metal identification analysis puts him there.
And his defense attorney telling law enforcement where to
look for the body puts him there.
(Emphasis added.) Defendant’s attorney objected at the next recess and again moved
for a mistrial based on the prosecutor’s stating “his defense attorney telling law
enforcement where to look for the body puts him there.” The trial court responded
that “I think it’s the same as saying the metal and the minerals puts him there. It’s
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an inference from what the attorney said. So your motion for mistrial is denied.”
Defendant’s attorney renewed his motion and asserted that the combination of the
two comments should result in a mistrial. The trial court ruled:
All right. Well, I find nothing wrong with the second
incident that you’re complaining of. I do find that he did
cross by saying what I told him -- not what I told him not
to but would not allow testimony that the defendant
provided the information to the lawyer. He improperly
commented on that in the first incident. In my discretion,
I denied your request for mistrial. I gave a cautionary
instruction to the jury and I do not feel like the comment
rises to the point where I should declare a mistrial. I think
that clarifies my ruling.
The trial court denied the defense’s repeated renewals of its motions for mistrial.
Defendant argues that the prosecutor’s statements that Shaniya’s body was
found “where the defendant’s lawyer said he put the body” and that “[defendant’s]
attorney telling law enforcement where to look for the body puts him there”
contravened the trial court’s pretrial rulings concerning evidence of the disclosure
and were without support in the record. Defendant asserts that these statements
were severely prejudicial because they called on the jury to infer that he made
confessions to his attorneys, which, if made, would have been privileged and
inadmissible, and also to infer that defendant concealed the body, which defendant
contends amounts to evidence of malice and of premeditation and deliberation.
Additionally, defendant argues that the statements were so prejudicial that the trial
court’s general curative instructions did nothing to cure the impermissible inferences
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urged by the State, nor could a more specific curative instruction have remedied the
issue. As a result, defendant contends that the trial court abused its discretion in
denying his motions for mistrial.
With regard to the second statement, namely, that “[defendant’s] attorney
telling law enforcement where to look for the body puts him there,” we conclude that
this statement was not improper. As discussed above, evidence that the information
of Shaniya’s location was conveyed to law enforcement by defendant’s attorneys was
properly admitted by the trial court and this evidence permitted reasonable
inferences to be drawn that were incriminating to defendant. These inferences are
precisely what the prosecutor argued here—that defendant was the ultimate source
of the information and had been to that location. Thus, the prosecutor’s statement
was permissible because he was arguing “the facts in evidence, and . . . reasonable
inferences drawn therefrom,” Goss, 361 N.C. at 626, 651 S.E.2d at 877 (quoting
Alston, 341 N.C. at 239, 461 S.E.2d at 709-10); see also, e.g., State v. Smith, 294 N.C.
365, 379, 241 S.E.2d 674, 682 (1978) (“Since the evidence was properly admitted, the
prosecutor was entitled to argue the full force of that evidence to the jury.”).
Defendant was free to rebut these inferences with any available evidence, as he
sought to do in his closing argument. But defendant’s objection to the incriminating
nature of these inferences is in reality a reiteration of his previous arguments that
the disclosure, and the admission of evidence relating to the disclosure, violated his
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constitutional rights and resulted in prejudice. As we have already considered and
rejected these arguments, defendant’s contention here must fail as well.
On the other hand, the prosecutor’s first statement that Shaniya’s body was
found “where the defendant’s lawyer said he put the body” was improper. This
statement was not couched as an inference but rather as an assertion of fact, which
was not an accurate reflection of the evidence. Nonetheless, we conclude that this
improper statement was not “such [a] serious impropriet[y] as would make it
impossible to attain a fair and impartial verdict.” Smith, 320 N.C. at 418, 358 S.E.2d
at 337 (quoting Stocks, 319 N.C. at 441, 355 S.E.2d at 494). Given that the prosecutor
was allowed to argue the reasonable inferences arising from the evidence of
defendant’s attorneys’ disclosure, and did so repeatedly in his closing argument, this
sole misstatement of that evidence did not run far afield of what was permissible.
Had we arrived at a different conclusion with respect to defendant’s previous
arguments, the impropriety of this statement may have been more egregious.
Further, we note that the trial judge agreed the statement was improper once
it was read back by the court reporter, but when it was originally uttered he did not
notice the statement, which ultimately occupied a single line from an extensive
closing argument spanning sixty-nine pages of the record. See Young, 291 N.C. at
573, 231 S.E.2d at 583 (noting that the prosecutor’s statement at issue “comprises
only a few lines from forty-one pages in the record devoted to the closing arguments
for the State”). As the trial court stated when offering to give a specific curative
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instruction, “If you want me to tell them to disregard that, I’ll be glad to tell them
that. I didn’t catch it. I’m not sure how many of them caught it.” This excerpt
supports the trial court’s discretionary ruling relating to the effect the statement may
have had on the jury. Moreover, in addition to offering to give a specific curative
instruction, the trial court gave a general curative instruction.
Additionally, the evidence against defendant was overwhelming. See State v.
Huey, 370 N.C. 174, 181, 804 S.E.2d 464, 470 (2017) (“When this Court has found the
existence of overwhelming evidence against a defendant, we have not found
statements that are improper to amount to prejudice and reversible error.” (citing
State v. Sexton, 336 N.C. 321, 363-64, 444 S.E.2d 879, 903, cert. denied, 513 U.S. 1006,
115 S. Ct. 525, 130 L. Ed. 2d 429 (1994), grant of postconviction relief aff’d, 352 N.C.
336, 532 S.E.2d 179 (2000))). This evidence included, inter alia: defendant’s initial
denial to police of knowing Shaniya or being involved in her disappearance until
confronted by photos from the hotel video cameras; the eyewitness and video
evidence, as well as defendant’s trial stipulation, of defendant taking Shaniya from
Sleepy Hollow to the Comfort Suites and leaving the hotel with her; the small blanket
that was discovered in the trash can and contained feces, blood, Shaniya’s hair, and
defendant’s pubic hair; the DNA evidence of defendant’s pubic hair on the hotel
comforter; the cell phone information showing that defendant was near the location
where the body was found and contradicting his story of receiving anonymous
instructions and taking Shaniya to the dry cleaning establishment in Fayetteville;
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the soil and metal fragment recovered from defendant’s car that was uniquely
consistent with the location where Shaniya’s body was found; defendant’s apparent
attempt to kill himself after being confronted with the evidence against him; and the
fact that the police received information on where to search for Shaniya from
attorneys who were representing defendant. In light of the foregoing reasons, and
affording “great deference” to the trial judge “since he is in a far better position than
an appellate court to determine the effect of any such error on the jury,” Thomas, 350
N.C. at 341, 514 S.E.2d at 502 (citing King, 343 N.C. at 44, 468 S.E.2d at 242), we
conclude that the trial judge did not abuse his discretion in denying defendant’s
motions for a mistrial based upon the improper remark.
Jury Instruction for Sex Offense and (e)(5) Aggravating Circumstance
Defendant next argues that the trial court erred in the guilt-innocence
proceeding by instructing the jury that it could find defendant guilty of sexual offense
of a child if it found either vaginal or anal penetration because the State failed to
present any evidence of anal penetration and because “it cannot be discerned from
the record upon which theory or theories the jury relied in arriving at its verdict.”
State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) (citing State v. Pakulski,
319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987)). For the same reasons, defendant
contends that the trial court erred in the sentencing proceeding by instructing the
jury that it could find the (e)(5) aggravating circumstance that the “capital felony was
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committed while the defendant was engaged in the commission of, or flight after
committing, the act of a sexual offense with a child.” We disagree.
“A trial judge should never give instructions to a jury which are not based upon
a state of facts presented by some reasonable view of the evidence.” State v. Sweat,
366 N.C. 79, 89, 727 S.E.2d 691, 698 (2012) (quoting State v. Lampkins, 283 N.C. 520,
523, 196 S.E.2d 697, 699 (1973)). Before a particular charge is submitted to the jury,
“the trial court must find substantial evidence has been introduced tending to prove
each essential element of the offense charged and that the defendant was the
perpetrator of the offense.” State v. Williams, 308 N.C. 47, 64, 301 S.E.2d 335, 346
(citing State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)), cert. denied, 464
U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 177 (1983). In determining whether there is
sufficient evidence to support every element of the offense charged, “[t]he evidence is
to be considered in the light most favorable to the State; the State is entitled to every
reasonable intendment and every reasonable inference to be drawn therefrom.”
Powell, 299 N.C. at 99, 261 S.E.2d at 117 (citations omitted). Similarly, in the
sentencing proceeding, “[i]n determining the sufficiency of the evidence to submit an
aggravating circumstance to the jury, the trial court must consider the evidence in
the light most favorable to the State, with the State entitled to every reasonable
inference to be drawn therefrom.” State v. Bell, 359 N.C. 1, 32, 603 S.E.2d 93, 114
(2004) (quoting State v. Anthony, 354 N.C. 372, 434, 555 S.E.2d 557, 596 (2001), cert.
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denied, 536 U.S. 930, 122 S. Ct. 2605, 153 L. Ed. 2d 791 (2002)), cert. denied, 544 U.S.
1052, 125 S. Ct. 2299, 161 L. Ed. 2d 1094 (2005).
Defendant asserts that the evidence of anal penetration was insufficient under
our decision in State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987). There the
defendant was convicted of first-degree sexual offense based upon a theory of anal
penetration. Id. at 89-90, 352 S.E.2d at 425, 427. The only evidence of anal
penetration was the seven-year-old victim’s testimony that the defendant “put his
penis in the back of me.” Id. at 86, 90, 352 S.E.2d at 425, 427. Additionally, the
physician who had examined the victim, when asked about evidence of “sexual
intercourse anally,” testified that there was “[n]one at all.” Id. at 90, 352 S.E.2d at
427. We reversed the defendant’s conviction, concluding that:
Given the ambiguity of [the victim’s] testimony as to
anal intercourse, and absent corroborative evidence (such
as physiological or demonstrative evidence) that anal
intercourse occurred, we hold that as a matter of law the
evidence was insufficient to support a verdict, and the
charge of first degree sexual offense should not have been
submitted to the jury.
Id. at 90, 352 S.E.2d at 427. Defendant argues that Hicks is controlling here because
while the autopsy revealed injuries to Shaniya’s vaginal area, there was “no evidence
of rectal injury;”12 however, defendant’s reliance upon Hicks is misplaced.
12 Defendant also argues that the State’s evidence failed to reveal any semen,
spermatozoa, or male DNA on the rectal swabs, nor was any found on Shaniya’s panties. We
note that there was expert testimony from a DNA expert, stating that the absence of DNA
was not unexpected because DNA begins to degrade or break down over time and that beyond
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As an initial matter, we note that evidence of an apparent injury is not
dispositive on the issue of penetration. See, e.g., State v. Smith, 315 N.C. 76, 102, 337
S.E.2d 833, 850 (1985) (stating that “no medical evidence of penetration, such as
bruising or tearing, is required to support” a conviction for first-degree sexual
offense); State v. Norman, 196 N.C. App. 779, 782, 675 S.E.2d 395, 398 (in which an
expert explained that the absence of anal damage does not mean sexual assault did
not occur “because the anal area was meant to stretch without tearing”), disc. rev.
denied, 363 N.C. 587, 683 S.E.2d 382 (2009). More importantly, while the autopsy
revealed no apparent injury, here there was sufficient other evidence that was lacking
in Hicks. In this case, a Kastle-Meyer or phenolphthalein test, which is a test used
to give the indication of whether blood is present on an item, indicated the presence
of blood in Shaniya’s anus. This chemical analysis also revealed a positive indication
for the presence of blood in the crotch area of Shaniya’s panties, as well on the bottom
rear portion of Shaniya’s shirt. Additionally, there was the circumstantial evidence
on the rail and steps of the trailer of feces which had not been present the previous
night. Further, in a nearby trash can, police discovered a child’s blanket that had
previously been in the living room of the trailer and that also contained feces, as well
as blood, Shaniya’s hair, and defendant’s pubic hair. This trash can was located
a 72 hour window it becomes more and more likely that it will not be recoverable. Special
Agent Hughes also testified that environmental conditions can affect how quickly DNA
breaks down. Here Shaniya was missing for over six days.
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across the street from the Davis residence and in close proximity to where defendant
had parked his car the previous night—after he had texted multiple women and
driven to the trailer park with the apparent hope of connecting with one of them. We
hold that this evidence, taken in the light most favorable to the State, was sufficient
to submit to the jury the issue of defendant’s guilt of sexual offense, as well as the
(e)(5) aggravating circumstance related to a sexual offense, based upon a theory of
anal penetration. Defendant’s arguments are overruled.
Voluntariness of Defendant’s Statements to Police
Defendant next argues that the trial court erred in denying his motion to
suppress statements he made during his interview with police on 12 November
2009.13 This argument is without merit.
“The standard of review in evaluating the denial of a motion to suppress is
whether competent evidence supports the trial court’s findings of fact and whether
13 Defendant also argues that certain evidence of his conduct—specifically that, during
a break in the interrogation, he twice put a key into a wall electrical socket—should also have
been inadmissible as “fruit of the involuntary statements.” Defendant, however, did not
challenge the admission of this conduct in the trial court and raises this issue for the first
time on appeal. Accordingly, “[d]efendant has failed to properly preserve this issue because
of his failure to raise it before the trial court.” State v. Gainey, 355 N.C. 73, 100, 558 S.E.2d
463, 480 (first citing N.C. R. App. P. 10(b)(1); then citing State v. Eason, 328 N.C. 409, 420,
402 S.E.2d 809, 814 (1991)), cert. denied, 537 U.S. 896, 123 S. Ct. 182, 154 L. Ed. 2d 165
(2002). Further, defendant has not requested plain error review of this issue. See N.C. R.
App. P. 10(4) (“In criminal cases, an issue that was not preserved by objection noted at trial
and that is not deemed preserved by rule or law without any such action nevertheless may
be made the basis of an issue presented on appeal when the judicial action questioned is
specifically and distinctly contended to amount to plain error.”).
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the findings of fact support the conclusions of law.” Biber, 365 N.C. at 167-68, 712
S.E.2d at 878 (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585
(1994)). We review conclusions of law de novo. Id. at 168, 712 S.E.2d at 878 (citing
McCollum, 334 N.C. at 237, 433 S.E.2d at 160).
While defendant’s primary contention in the trial court was that he was
subjected to custodial interrogation without the requisite Miranda warnings, he has
abandoned that argument on appeal and instead contends solely that his statements
were not voluntarily made, rendering their admission into evidence a violation of the
Due Process Clause of the Fourteenth Amendment to the United States Constitution
and Article I, Sections 19 and 23 of the North Carolina Constitution. The test for
voluntariness is whether, under the totality of the circumstances, “the confession [is]
the product of an essentially free and unconstrained choice by its maker,” in which
event it is admissible, or instead whether a defendant’s “will has been overborne and
his capacity for self-determination critically impaired,” in which event “the use of his
confession offends due process.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct.
1860, 1879, 6 L. Ed. 2d 1037, 1057-58 (1961) (citing Rogers v. Richmond, 365 U.S.
534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760, 768 (1961)); see also State v. Hardy, 339
N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (“The test for voluntariness in North
Carolina is the same as the federal test.” (citing State v. Jackson, 308 N.C. 549, 581,
304 S.E.2d 134, 152 (1983), judgment vacated and remanded, 479 U.S. 1077, 107 S.
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Ct. 1271, 94 L. Ed. 2d 133 (1987), aff’d on remand, 322 N.C. 251, 368 S.E.2d 838
(1988), cert. denied, 490 U.S. 1110, 109 S. Ct. 3165, 104 L. Ed. 2d 1027 (1989))).
According to defendant, despite his initial denials to police that he was
involved in the disappearance of Shaniya, which demonstrated his will not to make a
statement, the detectives made promises, threats, and other coercive comments that
overcame defendant’s will after fifty-four minutes and caused him to make certain
statements, including his admission to taking Shaniya from Sleepy Hollow to the
Comfort Suites as well as his story about receiving instructions on his telephone from
an unnamed third party. Defendant contends that the trial court erred by finding
that the investigating officers did not make any promises or threats and by
concluding that his statements were voluntarily made. We need not address these
contentions, however, because, as the State argues, even if defendant was able to
establish any error by the trial court in admitting these statements, such error would
be harmless beyond a reasonable doubt. See N.C.G.S. § 15A-1443(b) (2017) (“A
violation of the defendant’s rights under the Constitution of the United States is
prejudicial unless the appellate court finds that it was harmless beyond a reasonable
doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that
the error was harmless.”).
While a confession is prejudicial because it is the “best evidence” of a
defendant’s guilt, State v. Fox, 274 N.C. 277, 289, 163 S.E.2d 492, 501 (1968),
defendant did not confess to murder or sexual assault. On the contrary, even after
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the point at which defendant’s will was purportedly overborne, he denied causing any
harm to Shaniya. Defendant’s sole admission was that he had taken Shaniya from
Sleepy Hollow to the Comfort Suites—a fact to which he stipulated at trial and that
he does not dispute on appeal.
Any prejudice caused by the admission of defendant’s statements would be
limited to the effect on his credibility. For example, the State was able to present
evidence of defendant’s phone records and cellular location data that tended to
disprove defendant’s story about receiving instructions on his phone from an
unnamed third party to take Shaniya to a dry cleaning establishment at the corner
of Country Club Drive and Ramsey Street in Fayetteville. Further, towards the end
of the interview with police, defendant denied making his earlier statements, which
would both contradict his earlier statements and also his stipulation at trial. Yet,
this was not the only evidence tending to damage defendant’s credibility. For
instance, defendant’s suppression argument would have no effect on the admissibility
of his statements made before the point at which he contends his will was overborne,
including his various denials of being at Brenda Davis’s trailer, of seeing Shaniya or
even knowing her, of having Shaniya in his car, of taking her to the hotel in Sanford,
and of being the person seen on video recordings checking into the hotel under
defendant’s name and with his identification. Similarly, there was the evidence that
defendant had told both of the clerks at the Comfort Suites that he was traveling with
his daughter and taking her to her mother in Virginia. Given the overwhelming
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evidence of defendant’s guilt presented at trial, we conclude that any conceivable
effect on defendant’s credibility caused by the admission of his statements would be
harmless beyond a reasonable doubt. See State v. Autry, 321 N.C. 392, 400, 364
S.E.2d 341, 346 (1988) (“Significantly, this Court has held that the presence of
overwhelming evidence of guilt may render error of constitutional dimension
harmless beyond a reasonable doubt.” (citing State v. Brown, 306 N.C. 151, 164, 293
S.E.2d 569, 578, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982))).
Racial Justice Act Hearing
Defendant next argues that the trial court erred in denying his motion under
the Racial Justice Act to prohibit the State from seeking the death penalty without
holding an evidentiary hearing.
The Racial Justice Act (RJA) became effective on 11 August 2009 and provided
that “[n]o person shall be subject to or given a sentence of death or shall be executed
pursuant to any judgment that was sought or obtained on the basis of race.” N.C.G.S.
§ 15A-2010 (2009); Act of Aug. 6, 2009, ch. 464, 2009 N.C. Sess. Laws 1213. The RJA
implemented a hearing procedure authorizing a defendant to raise an RJA claim
either at the Rule 24 pretrial conference or in postconviction proceedings. N.C.G.S. §
15A-2012 (2009); Ch. 464, sec. 1, 2009 N.C. Sess. Laws at 1214-15. The RJA
provided, in pertinent part:
(a) The defendant shall state with particularity
how the evidence supports a claim that race was a
significant factor in decisions to seek or impose the
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sentence of death in the county, the prosecutorial district,
the judicial division, or the State at the time the death
sentence was sought or imposed.
(1) The claim shall be raised by the defendant at
the pretrial conference required by Rule 24 of
the General Rules of Practice for the Superior
and District Courts or in postconviction
proceedings pursuant to Article 89 of Chapter
15A of the General Statutes.
(2) The court shall schedule a hearing on the
claim and shall prescribe a time for the
submission of evidence by both parties.
N.C.G.S. § 15A-2012; Ch. 464, sec. 1, 2009 N.C. Sess. Laws at 1214-15. The RJA was
amended in 2012, see Act of June 21, 2012, ch. 136, secs. 3-4, 2012 N.C. Sess. Laws
(Reg. Sess. 2012) 471, 471-73, and then repealed in its entirety in 2013, see Act of
June 13, 2013, ch. 154, sec. 5, 2013 N.C. Sess. Laws 368, 372.
Defendant contends that although the RJA was amended, and ultimately
repealed, the ex post facto clauses of the United States and North Carolina
Constitutions, the Due Process Clause of the Fourteenth Amendment, Article I,
Section 19 of the North Carolina Constitution, and North Carolina common law bar
the application of the amended RJA or the repeal of the RJA to his rights under the
original RJA. Further, defendant argues that despite the mandatory language of the
original RJA that “[t]he court shall schedule a hearing on the claim and shall
prescribe a time for the submission of evidence by both parties,” N.C.G.S. § 15A-
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2012(a)(2) (2009) (emphases added), the trial court erroneously denied his RJA
motion without holding an evidentiary hearing.
Yet, assuming arguendo that any version of the RJA applies to defendant, he
neglects to note that he himself did not follow the language of section 15A-2012(a)(1),
which mandates that “[t]he claim shall be raised by the defendant at the pretrial
conference required by Rule 24 of the General Rules of Practice for the Superior
and District Courts or in postconviction proceedings pursuant to Article 89 of
Chapter 15A of the General Statutes.” Id. § 2012(a)(1) (2009) (emphasis added). Here
defendant did not raise his RJA claim at the Rule 24 conference. Notably, at the Rule
24 conference, the trial court twice asked defendant whether he wanted to be heard,
and on both occasions defendant stated that there was nothing to be offered for
defendant. Defendant cannot complain of the trial court’s failure to strictly adhere
to the RJA’s pretrial statutory procedures where he himself failed to follow those
procedures.
We observe that the RJA authorized a defendant to raise an RJA claim at the
Rule 24 pretrial conference “or in postconviction proceedings pursuant to Article 89
of Chapter 15A of the General Statutes.” Id. Accordingly, while we express no
opinion on the substance of any rights or claims defendant may have under any
version of the RJA, our conclusion here is without prejudice to defendant’s ability to
raise any such claim in postconviction proceedings in the form of a motion for
appropriate relief.
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Improper Remarks in Closing Arguments at Sentencing Proceeding
Defendant next argues that the trial court erred by failing to intervene ex mero
motu during the State’s closing argument in the sentencing proceeding. We disagree.
Defendant takes exception to two statements made by prosecutors during the
State’s closing argument which refer to his decision not to present mitigating
evidence or closing arguments. First, Assistant District Attorney Cox stated:
Do not let the actions sway or cause you to sympathize with
his course of action in this sentencing phase about
argument or evidence -- do not let it manipulate you into
feeling sympathy for the defendant. The judge will instruct
you that you’re not to take that into consideration. Do not
let it sway you.
Shortly afterward, District Attorney West stated:
Now, I ask you, as Ms. Cox did -- we do not know why the
defendant has conducted himself in the sentencing hearing
as he has; but, I ask you to follow the law when you go
through the process. It may be to invoke sympathy. It may
be a simple act of defiance, or it may be some type of
manipulation. Whatever the reason, I ask you to go
through this process and make your decision based on the
facts and the law in this particular case.
According to defendant, the remarks were grossly improper because they expressed
personal opinions, based solely on speculation and without support in the record,
which attributed improper motives to defendant’s decision not to present mitigating
evidence or give closing arguments at the sentencing proceeding. Defendant did not
object on either occasion.
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“Where there is no objection, ‘the standard of review to determine whether the
trial court should have intervened ex mero motu is whether the allegedly improper
argument was so prejudicial and grossly improper as to interfere with defendant’s
right to a fair trial.’ ” State v. Gaines, 345 N.C. 647, 673, 483 S.E.2d 396, 412 (quoting
State v. Alford, 339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995)), cert. denied, 522 U.S.
900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).
We conclude that there was no gross impropriety in the prosecutors’ remarks
such that the trial court was required to intervene ex mero motu. We first note that
it was not impermissible for the prosecutors here to comment on defendant’s lack of
mitigating evidence. See State v. Taylor, 337 N.C. 597, 613, 447 S.E.2d 360, 370
(1994)14 (“It is well established that although the defendant’s failure to take the stand
and deny the charges against him may not be the subject of comment, the defendant’s
failure to produce exculpatory evidence or to contradict evidence presented by the
State may properly be brought to the jury’s attention by the State in its closing
argument.” (first citing State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993);
then citing State v. Young, 317 N.C. 396, 415, 346 S.E.2d 626, 637 (1986); then citing
State v. Mason, 315 N.C. 724, 732, 340 S.E.2d 430, 436 (1986); and then citing State
v. Tilley, 292 N.C. 132, 143, 232 S.E.2d 433, 441 (1977))); see also State v. Brown, 320
N.C. 179, 204-06, 358 S.E.2d 1, 18-19 (1987) (finding no gross impropriety in
In February 2010, a three judge panel of the North Carolina Innocence Inquiry
14
Commission unanimously ruled that Taylor had been wrongly convicted in 1993.
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prosecutor’s arguments during capital sentencing proceeding concerning the
defendant’s failure to produce siblings who could testify on his behalf), cert. denied,
484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987). Further, the thrust of both
prosecutors’ arguments was a simple admonition to the jury to make its decision
based on the facts and the law presented in the case. To the extent that there was
any impropriety in the prosecutors’ suggestions that defendant’s decision not to
present mitigating evidence or give closing arguments was an “act of defiance” or a
“manipulation” to garner sympathy, we conclude that these comments were not “so
prejudicial and grossly improper as to interfere with defendant’s right to a fair trial.”
Gaines, 345 N.C. at 673, 483 S.E.2d at 412 (quoting Alford, 339 N.C. at 571, 453
S.E.2d at 516).
Preservation Issues
Defendant argues that the death penalty constitutes cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments to the United
States Constitution and Article I, Section 27 of the North Carolina Constitution, and
that North Carolina’s capital sentencing scheme is arbitrary, vague, and overbroad.
Defendant does not characterize this assertion as a preservation issue, but “we treat
the assigned error as such in light of our numerous decisions that have rejected a
similar argument.” State v. Hurst, 360 N.C. 181, 205, 624 S.E.2d 309, 326, cert.
denied, 549 U.S. 875, 127 S. Ct. 186, 166 L. Ed. 2d 131 (2006). This Court has
previously considered and rejected these arguments, and we decline to depart from
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our prior precedent. See, e.g., id. at 205, 624 S.E.2d at 327 (“This Court has held that
the North Carolina capital sentencing scheme is constitutional . . . .” (citing State v.
Powell, 340 N.C. 674, 695, 459 S.E.2d 219, 230 (1995), cert. denied, 516 U.S. 1060,
116 S. Ct. 739, 133 L. Ed. 2d 688 (1996))); see also State v. Maness, 363 N.C. 261, 294,
677 S.E.2d 796, 816-17 (2009), cert. denied, 559 U.S. 1052, 130 S. Ct. 2349, 176 L. Ed.
2d 568 (2010); State v. Duke, 360 N.C. 110, 142, 623 S.E.2d 11, 32 (2005), cert. denied,
549 U.S. 855, 127 S. Ct. 130, 166 L. Ed. 2d 96 (2006); State v. Garcia, 358 N.C. 382,
424-25, 597 S.E.2d 724, 753 (2004), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161
L. Ed. 2d 122 (2005); State v. Williams, 304 N.C. 394, 409-11, 284 S.E.2d 437, 448
(1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 2 L. Ed. 2d 450 (1982); State v.
Barfield, 298 N.C. 306, 343-54, 259 S.E.2d 510, 537-44 (1979), cert. denied, 448 U.S.
907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980), disavowed on other grounds, State v.
Johnson, 317 N.C. 193, 203-04, 344 S.E.2d 775, 782 (1986).
Defendant raises five additional issues that he concedes have previously been
decided by this Court contrary to his position: (1) the trial court erred by ordering
defense counsel to defer to defendant’s decision not to present mitigating evidence in
the sentencing proceeding after finding an absolute impasse between defendant and
defense counsel; (2) the trial court committed plain error under the Eighth and
Fourteenth Amendments by instructing the jury that it could refuse to give effect to
nonstatutory mitigating evidence if the jury deemed the evidence not to have
mitigating value; (3) the trial court committed plain error by using the word
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“satisfies” in capital sentencing instructions to define defendant’s burden of
persuasion to prove mitigating circumstances; (4) the trial court committed plain
error by instructing the jurors for Issues Three and Four that each juror “may”
consider mitigating circumstances found in Issue Two; and (5) when charging the
commission of murder that is punishable by death, the failure to allege aggravating
circumstances in the short-form murder indictment is a jurisdictional defect under
North Carolina law.
Having considered defendant’s arguments, we see no reason to revisit or depart
from our earlier holdings. See State v. Grooms, 353 N.C. 50, 84-86, 540 S.E.2d 713,
734-35 (2000) (holding that when the defendant and his counsel had reached an
absolute impasse, the trial court properly ordered defense counsel to defer to
defendant’s wishes not to present mitigating evidence and that this ruling did not
deprive the defendant of effective assistance of counsel),15 cert. denied, 534 U.S. 838,
122 S. Ct. 93, 151 L. Ed. 2d 54 (2001); State v. Payne, 337 N.C. 505, 533, 448 S.E.2d
93, 109 (1994) (finding no error in a sentencing instruction that “allowed the jury to
decide that a non-statutory circumstance existed but that it had no mitigating
15 Defendant asserts that the trial court’s order prohibiting his counsel from
presenting mitigating evidence deprived him of his Sixth Amendment right to effective
assistance of counsel under Cronic in that it prevented “meaningful adversarial testing” of
the State’s penalty case. Cronic, 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668. We
note that while the Court in Grooms referenced Strickland in addressing and rejecting the
ineffective assistance of counsel portion of the defendant’s mitigating evidence argument,
Grooms, 353 N.C. at 86, 540 S.E.2d at 735, the defendant there asserted violations of the
Sixth Amendment right to counsel under both Strickland and Cronic.
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value”), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 292 (1995); id. at
531-33, 448 S.E.2d at 108-09 (holding that the use of the term “satisfy” to define a
defendant’s burden of proof for mitigating circumstances was not plain error); State
v. Lee, 335 N.C. 244, 286-87, 439 S.E.2d 547, 569-70 (opining that the trial court did
not err in instructing the jurors for Issues Three and Four that each juror “may”
consider mitigating circumstances found in Issue Two), cert. denied, 513 U.S. 891,
115 S. Ct. 239, 130 L. Ed. 2d 162 (1994); see also State v. Wilkerson, 363 N.C. 382,
435, 683 S.E.2d 174, 206 (2009) (“This Court has repeatedly held that short-form
murder indictments satisfy the requirements of our state and federal constitutions.”
(citing State v. Hunt, 357 N.C. 257, 278, 582 S.E.2d 593, 607, cert. denied, 539 U.S.
985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003))), cert. denied, 559 U.S. 1074, 130 S. Ct.
2104, 176 L. Ed. 2d 734 (2010).
Proportionality Review
Finally, in accordance with our statutory responsibility, we consider whether
the record supports the aggravating circumstances found by the jury, whether the
death sentence “was imposed under the influence of passion, prejudice, or any other
arbitrary factor,” and whether the death sentence “is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and the defendant.”
N.C.G.S. § 15A-2000(d)(2) (2017).
The jury found all five of the aggravating circumstances submitted for its
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consideration.16 The jury found the existence of three aggravating circumstances
under N.C.G.S. § 15A-2000(e)(3), namely, that in three separate instances defendant
had been previously convicted of a felony involving the use of violence to another
person. The jury found the existence of two additional aggravating circumstances
under N.C.G.S. § 15A-2000(e)(5): first, that the capital felony was committed while
the defendant was engaged in the commission of, or flight after committing, the act
of first degree kidnapping; and second, that the capital felony was committed while
the defendant was engaged in the commission of, or flight after committing, the act
of a sexual offense with a child. After careful consideration, we conclude that the
jury’s finding of these circumstances beyond a reasonable doubt was fully supported
by the evidence.
Defendant presents no argument that his sentence of death should be vacated
because it “was imposed under the influence of passion, prejudice, or any other
arbitrary factors,” id. § 15A-2000(d)(2), and our careful review of the record and
transcripts reveals nothing that would support such a ruling.
16 Two statutory mitigating circumstances were submitted—that the capacity of
defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was impaired, N.C.G.S. § 15A-2000(f)(6), and the catchall mitigating
circumstance that any other circumstance arose from the evidence that any juror deems to
have mitigating value, id. § 15A-2000(f)(9)—but neither was found by the jury. At least one
juror found the non-statutory mitigating circumstance that defendant’s use of marijuana and
or alcohol, and or cocaine affected his decision making, and at least one juror found the
nonstatutory mitigating circumstance that defendant is a good father to his children and
loves them. The jury found beyond a reasonable doubt that these mitigating circumstances
were insufficient to outweigh the aggravating circumstances.
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Last, we must determine whether “the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering both the crime
and the defendant.” Id. § 15A-2000(d)(2). “We consider all cases which are roughly
similar in facts to the instant case, although we are not constrained to cite each and
every case we have used for comparison.” State v. McNeill, 360 N.C. 231, 254, 624
S.E.2d 329, 344 (citing State v. al-Bayyinah, 359 N.C. 741, 760-61, 616 S.E.2d 500,
514 (2005), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006)),
cert. denied, 549 U.S. 960, 127 S. Ct. 396, 166 L. Ed. 2d 281 (2006). “Whether the
death penalty is disproportionate ‘ultimately rest[s] upon the “experienced
judgments” of the members of this Court.’ ” al-Bayyinah, 359 N.C. at 761, 616 S.E.2d
at 514 (alteration in original) (quoting State v. Green, 336 N.C. 142, 198, 443 S.E.2d
14, 47, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994)).
This Court has held the death penalty to be disproportionate in eight cases:
State v. Kemmerlin, 356 N.C. 446, 487-89, 573 S.E.2d 870, 897-99 (2002); State v.
Benson, 323 N.C. 318, 328-29, 372 S.E.2d 517, 522-23 (1988); State v. Stokes, 319 N.C.
1, 19-27, 352 S.E.2d 653, 663-68 (1987); State v. Rogers, 316 N.C. 203, 234-37, 341
S.E.2d 713, 731-33 (1986), overruled on other grounds by Gaines, 345 N.C. at 676-77,
483 S.E.2d at 414, and by State v. Vandiver, 321 N.C. 570, 573, 364 S.E.2d 373, 375
(1988); State v. Young, 312 N.C. 669, 686-91, 325 S.E.2d 181, 192-94 (1985); State v.
Hill, 311 N.C. 465, 475-79, 319 S.E.2d 163, 170-72 (1984); State v. Bondurant, 309
N.C. 674, 692-94, 309 S.E.2d 170, 181-83 (1983); and State v. Jackson, 309 N.C. 26,
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45-47, 305 S.E.2d 703, 716-18 (1983). We conclude that this case is not substantially
similar to any of those cases.
Here defendant kidnapped a five-year-old child from her home and sexually
assaulted her before strangling her and discarding her body under a log in a remote
area used for field dressing deer carcasses. We note that this Court “ha[s] never found
a death sentence disproportionate in a case involving a victim of first-degree murder
who also was sexually assaulted.” State v. Kandies, 342 N.C. 419, 455, 467 S.E.2d
67, 87 (citing State v. Payne, 337 N.C. 505, 537, 448 S.E.2d 93, 112 (1994), cert. denied,
514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 292 (1995)), cert. denied, 519 U.S. 894,
117 S. Ct. 237, 136 L. Ed. 2d 167 (1996). Further, “[t]his Court has deemed the (e)(3)
aggravating circumstance,” of which the jury here found three separate instances,
“standing alone, to be sufficient to sustain a sentence of death.” al-Bayyinah, 359
N.C. at 762, 616 S.E.2d at 515 (citing State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d
542, 566 n.8 (1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1120, 130 L. Ed. 2d 1083
(1995)). Similarly, we have held that the (e)(5) aggravating circumstance, of which
the jury here found two separate instances based upon the commission, or flight after
commission of, kidnapping and sex offense, to be sufficient to affirm a sentence of
death. See State v. Zuniga, 320 N.C. 233, 274-75, 357 S.E.2d 898, 923-24, cert. denied,
484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987). Moreover, the jury found
defendant guilty of both felony murder and first-degree murder committed with
malice, premeditation, and deliberation. While a conviction based solely upon felony
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murder is punishable by a sentence of death, “a finding of premeditation and
deliberation indicates a more calculated and cold-blooded crime for which the death
penalty is more often appropriate.” State v. Phillips, 365 N.C. 103, 150, 711 S.E.2d
122, 154 (2011) (quoting Taylor, 362 N.C. at 563, 669 S.E.2d at 276 (internal
quotation marks omitted)), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d
176 (2012).
In comparing defendant’s case with those in which this Court has found the
death penalty to be proportionate, al-Bayyinah, 359 N.C. at 762, 616 S.E.2d at 515,
we conclude that defendant’s case is more analogous to these cases. See, e.g., State v.
Lane, 365 N.C. 7, 39-40, 707 S.E.2d 210, 230 (holding a sentence of death
proportionate when the “defendant confessed to taking advantage of a trusting five-
year-old child, then raping and sodomizing her before putting her, while still alive, in
a garbage bag sealed with duct tape, wrapping her in a tarp, and discarding her body
in a creek”), cert. denied, 565 U.S. 1081, 132 S. Ct. 816, 181 L. Ed. 2d 529 (2011).
Conclusion
For the foregoing reasons we conclude that defendant received a fair trial and
capital sentencing proceeding free of prejudicial error, and that the death sentence
recommended by the jury and imposed by the trial court is not excessive or
disproportionate.
NO ERROR.
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