An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-668 NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Rockingham County No. 10CRS000231 SHYMEL D. JEFFERSON
Appeal by defendant from judgment entered 8 June 2012 by
Judge A. Moses Massey in Rockingham County Superior Court.
Heard in the Court of Appeals 10 December 2013.
Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State.
John R. Mills for defendant-appellant.
HUNTER, Robert C., Judge.
Shymel D. Jefferson (“defendant”) appeals from judgment
sentencing him to life imprisonment without the possibility of
parole for one count of first-degree murder. On appeal,
defendant argues that: (1) the sentence imposed violates N.C.
Gen. Stat. § 15A-1340.19B (2013) and other state and federal
constitutional provisions because defendant was a minor when the
crime took place; (2) the trial court reversibly erred by -2- failing to make a finding that defendant’s waiver of rights
during custodial interrogation was knowing, willing, and
understanding before admitting those custodial statements into
evidence; (3) defendant’s trial counsel was unconstitutionally
ineffective for failing to move to suppress defendant’s
custodial statements; and (4) the trial court lacked
jurisdiction to enter judgment because the indictment was
fatally defective.
After careful review, we remand for resentencing but find
no prejudicial error as to the remaining issues.
Background
Evidence was presented at trial which tended to show the
following. On the night of 6 November 2009, defendant, Travis
Brown, Shaquan Beamer (“Beamer”), and defendant’s older cousin,
Shavon Reid (“Shavon”), went to the Icehouse, a bar in Eden,
North Carolina. Defendant was fifteen years old at this time
and had been living with Shavon in Martinsville, Virginia.
Prior to the night in question, defendant had begun carrying a
pistol for protection. He brought the gun with him to the
Icehouse but left it in the car when the group went inside.
At the Icehouse, defendant encountered Jason Gallant
(“Gallant”), Timothy Seay (“Seay”), and Terris Dandridge -3- (“Dandridge”). After about an hour in the bar, a fistfight
broke out. Defendant, Dandridge, and Gallant were all involved;
defendant and Dandridge were seen pushing each other. The fight
was quickly broken up by bar security, and both groups were
forced to go outside. Defendant left the bar and retrieved his
gun from the car.
Once the crowd had moved into the street, Seay’s group
began taunting defendant’s group. Defendant testified that he
heard a gunshot during the encounter. He then fired his gun in
the direction of the group of people where he thought the shot
had come from until he ran out of bullets. Devin Turner, a
witness to the incident, testified that the only people he saw
firing were defendant and Shavon. Ultimately, two people were
injured and one was killed as a result of the shooting. Gallant
and Dandrige were wounded by gunshots to the wrist and leg,
respectively. Seay was killed by a gunshot wound to the head
and was also shot one time in the chest, with the bullet getting
lodged in his shoulder. Police later recovered two types of
shell casings from the scene - .40 caliber and .380. Expert
testimony established that the nine .380 casings found at the
scene and the bullet in Seay’s shoulder were fired from
defendant’s gun. -4- After the shooting, defendant and Shavon returned to
Martinsville. Defendant called his girlfriend, Melissa Manns
(“Melissa”), and asked her to come pick him up in her car.
Defendant and Melissa drove deep into the country at defendant’s
urging. Defendant then asked for the car to be stopped.
Melissa testified that she then saw defendant get out of the car
and throw an object into the woods, and that defendant told her
“you all better not tell anybody where you took me.” After they
returned, Beamer informed Melissa and defendant that someone had
been killed at the Icehouse. The next day, Melissa called the
police and took the officers to where defendant had thrown the
object into the woods; police recovered a gun from the area,
which Melissa identified as defendant’s.
About a day after the shooting, Shavon’s older brother
Demetrius Reid (“Demetrius”) traveled to Martinsville to bring
defendant back to Demetrius’s home in Hampton, Virginia.
Demetrius testified that he was willing to let defendant move in
with him while defendant’s mother was in jail. On the drive
away from Martinsville, defendant broke down crying and told
Demetrius that he shot a man who had “bumped him” at the
Icehouse. Defendant told Demetrius that the man he shot had
been regularly antagonizing him at parties. Demetrius drove -5- defendant back to Eden, where he was taken into custody and
interrogated three times by Eden police officers. Before the
first interview, defendant was apprised of his Miranda rights
and signed a waiver of rights form. The first interview ended
when defendant asserted his right to remain silent. The second
interview was initiated by defendant, who told Demetrius that he
wanted to speak to the officers. The second interview ended
with defendant asserting his right to counsel. The third and
final interview was again initiated by defendant; it was during
this interview that he admitted to firing a gun and shooting
someone at the Icehouse.
Defendant was indicted and tried as an adult for first-
degree murder. The jury rejected the theories of premeditation
and deliberation and acting in concert, but convicted defendant
based on the felony murder rule, with the underlying felony
being assault with a deadly weapon inflicting serious injury. He
was sentenced to life imprisonment without the possibility of
parole. Defendant entered timely notice of appeal.
Discussion
I. Sentencing
Defendant first argues that the sentence of mandatory life
imprisonment without the possibility of parole violates N.C. -6- Gen. Stat. § 15A-1340.19B(a)(1) (2013) and this Court’s ruling
in State v. Lovette, __ N.C. App. __, 737 S.E.2d 432 (2013).
The State concedes that the sentence imposed by the trial court
violates North Carolina law and agrees that this case should be
remanded for resentencing. Accordingly, we remand.
The General Assembly enacted section 15A-1340.19B in
response to the United States Supreme Court’s ruling in Miller
v. Alabama, __ U.S. __, __, 183 L. Ed. 2d 407, 414-15 (2012),
where the Supreme Court held that “mandatory life without parole
for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and
unusual punishments.’” Pursuant to section 15A-1340.19B(a)(1),
the sentence for an individual under the age of 18 at the time
of the offense who is convicted of first-degree murder solely on
the basis of the felony murder rule shall be life imprisonment
with parole. See N.C. Gen. Stat. §§ 15A-1340.19A, 15A-
1340.19B(a)(1) (2013). In Lovette, this Court held that these
provisions, as new rules of criminal procedure, “must be applied
retroactively ‘to all cases, state or federal, pending on direct
review or not yet final.’” Lovette, __ N.C. App. at __, 737
S.E.2d at 441 (quoting State v. Zuniga, 336 N.C. 508, 511, 444
S.E.2d 443, 445 (1994)). -7- Here, defendant was fifteen years old at the time of the
shooting, his conviction for first-degree murder was based
solely on the felony murder rule, and the case was pending on
direct appeal when section 15A-1340.19B came into effect.1
Therefore, pursuant to Lovette, we remand for a new sentence.
Defendant also suggests that “[t]his case presents the
Court with an opportunity to explain the state law basis for
barring mandatory sentences of life without possibility of
parole and the interaction between state and federal bars on
cruel and/or unusual punishment.” Because application of
section 15A-1340.19B and the precedent from Lovette fully
resolve this issue, we decline to address defendant’s additional
argument relating to the interplay between state and federal
constitutional law.
II. Finding as to Waiver of Rights
Defendant next argues that the trial court reversibly erred
by admitting his custodial statements into evidence without
first entering a finding that defendant “knowingly, willingly,
and understandingly waived [his] rights” pursuant to N.C. Gen.
Stat. § 7B-2101(d) (2013). We hold that the trial court erred by
1 N.C. Gen. Stat. § 15A-1340.19B went into effect on 12 July 2012. See 2012 N.C. Sess. Laws 148, § 3. -8- failing to enter the required finding, but because the error was
not prejudicial, we do not disturb the judgment on this ground.
“Before admitting into evidence any statement resulting
from custodial interrogation, the court shall find that the
juvenile knowingly, willingly, and understandingly waived the
juvenile’s rights.” N.C. Gen. Stat. § 7B-2101(d) (2013). The
State concedes that the trial court admitted defendant’s
custodial statements without entering the finding required by
section 7B-2101(d). However, where defendant argues that
violation of section 7B-2101(d) requires this Court to remand
for a new evidentiary hearing, the State contends that violation
of section 7B-2101(d) is reviewed under the prejudicial error
analysis.
We agree with the State and find that State v. Small, 328
N.C. 175, 400 S.E.2d 413 (1991) is controlling as to the
standard of review. In Small, the North Carolina Supreme Court
analyzed the precursor to section 7B-2101, N.C. Gen. Stat. § 7A-
595, which provided in language almost identical to the statute
before us that “[b]efore admitting any statement resulting from
custodial interrogation into evidence, the judge must find that
the juvenile knowingly, willingly, and understandingly waived
his rights.” See Small, 328 N.C. at 187, 400 S.E.2d at 419; see -9- also 1998 Sess. Laws 202, §§ 5, 6 (repealing section 7A-595 and
adding section 7B-2101 to the General Statutes). The trial
court in Small admitted the juvenile defendant’s custodial
statements into evidence without entering the required finding
that waiver of the defendant’s rights was knowing, willing and
understanding. Small, 328 N.C. at 187, 400 S.E.2d at 419.
However, rather than remanding the case, the Supreme Court
analyzed the trial court’s violation of section 7A-595 under the
prejudicial error analysis of N.C. Gen. Stat. § 15A-1443(a),
whereby the defendant bears the burden of showing prejudice.
The Court held:
In light of the State’s compelling evidence incriminating defendant, there is no “reasonable possibility that . . . a different result would have been reached at trial” whether defendant’s statement was admitted or excluded. . . . The failure to make the finding thus did not affect the outcome of defendant’s trial, and defendant has failed to carry his burden of showing prejudice from the trial court’s failure to make the finding.
Id. (quoting N.C. Gen. Stat. § 15A-1443(a)). Thus, pursuant to
Small, we will review the trial court’s failure to comply with
section 7B-2101(d) here for prejudicial error.
Defendant contends that his custodial admission to shooting
someone in the leg at the Icehouse is the only direct evidence -10- of the underlying felony of assault with a deadly weapon
inflicting serious injury, and thus, had this evidence been
excluded, there exists a reasonable possibility that a different
result would have been reached at trial. We disagree. The
State put on a wide array of compelling evidence, including
defendant’s own testimony, which tended to prove beyond a
reasonable doubt that defendant committed the crime of assault
with a deadly weapon inflicting serious injury.
The essential elements of assault with a deadly weapon
inflicting serious injury are “(1) an assault (2) with a deadly
weapon (3) inflicting serious injury (4) not resulting in
death.” State v. Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805,
812 (2009) (citation omitted). To prove these elements, the
State presented the following evidence. First, Demetrius
testified without objection that when he and defendant were
driving away from Martinsville, defendant broke down crying and
admitted to shooting someone at the Icehouse. Second, the State
called a witness who was present at the scene of the
altercation; he identified defendant and Shavon as the two
shooters. Third, Melissa testified that she drove defendant
into the country and watched him throw his gun into the woods.
Fourth, the State put on expert testimony which established that -11- shell casings from the scene of the crime and the bullet lodged
in Seay’s shoulder were all fired from defendant’s gun. Fifth,
and most importantly, defendant took the stand at trial and
admitted to the following: (1) firing his gun at the victims
when he thought that he heard a gunshot coming from their
direction; (2) getting Melissa to drive him into the country so
that he could dispose of his gun; and (3) telling Demetrius on
the drive away from Martinsville that he thought he had killed
someone. Defendant specifically admitted at trial that he
“unloaded [his] gun” into what he estimated to be five people,
with three being shot. Thus, the State presented extremely
compelling evidence that defendant committed the crime of
assault with a deadly weapon inflicting serious injury, even
excluding defendant’s custodial statements.
Defendant failed to show that, absent the admission of his
custodial statements, there existed a reasonable possibility
that a different result would have been reached at trial.
Therefore, defendant has failed to carry the burden of showing
that the trial court’s failure to enter a finding pursuant to
section 7B-2101(d) was prejudicial. See Small, 328 N.C. at 187,
400 S.E.2d at 419; N.C. Gen. Stat. § 15A-1443(a). -12- In the alternative, defendant argues that this Court should
review the trial court’s failure to comply with section 7B-
2101(d) for plain error. Given that the plain error standard
imposes a higher burden on defendant than prejudicial error,
State v. Lanier, 165 N.C. App. 337, 354, 598 S.E.2d 596, 607
(2004) (citation omitted), we hold that the trial court’s
failure to comply with section 7B-2101(d) could not have
amounted to plain error where the error was not prejudicial.
III. Ineffective Assistance of Counsel
Defendant next argues that he was deprived of effective
assistance of counsel guaranteed by the North Carolina and
federal constitutions because his trial counsel failed to move
to suppress defendant’s custodial admissions. We find no
prejudicial error.
In order to establish ineffective assistance of counsel,
defendant has the burden of showing that trial counsel’s
performance “fell below an objective standard of
reasonableness.” State v. Fletcher, 354 N.C. 455, 481, 555
S.E.2d 534, 550 (2001) (citation omitted). To meet this burden,
defendant must satisfy a two-part test:
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 -13- 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 reliable.
Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.
Ed. 2d 674, 693 (1984)). The element of prejudice can only be
met if “there is a reasonable probability that, but for
counsel’s errors, there would have been a different result in
the proceedings.” State v. Braswell, 312 N.C. 553, 563, 324
S.E.2d 241, 248 (1985) (citation omitted). “[I]f a reviewing
court can determine at the outset that there is no reasonable
probability that in the absence of counsel’s alleged errors the
result of the proceeding would have been different, then the
court need not determine whether counsel’s performance was
actually deficient.” State v. Harrison, 169 N.C. App. 257, 262,
610 S.E.2d 407, 411 (2005) (citation omitted), aff’d per curiam,
360 N.C. 394, 627 S.E.2d 461 (2006). After careful review, we
hold that because defendant cannot establish prejudice by trial
counsel’s alleged error, he cannot prevail on the issue of
ineffective assistance of counsel.
First, there is no reasonable probability that the trial
court would have allowed a motion to suppress the custodial -14- statements if one had been entered. Defendant concedes in his
brief on appeal that he signed a waiver of rights form, that the
first interview was stopped after he asserted his right to
remain silent, that the waiver form was again presented before
the second interview, and that the second interview was again
stopped when defendant asserted his right to counsel. Defendant
further concedes that the third interview, at which defendant
provided the only incriminating statements, was initiated by
defendant, not the police officers. Defendant’s behavior
indicated that he understood how to exercise his constitutional
rights and that he intentionally waived those rights by
initiating the third and final interview. See State v.
Crawford, 83 N.C. App. 135, 137, 349 S.E.2d 301, 302 (1986)
(noting that a defendant may waive the right to remain silent
and the right to counsel by initiating the conversation in which
he waives those rights). Furthermore, video footage of these
interviews shows that the officers carefully explained each of
defendant’s Miranda and juvenile rights before defendant signed
the waiver form and that defendant verbally acknowledged that he
understood these rights and the effect of the waiver.
Therefore, had the trial court been faced with a motion to
suppress, it would have had ample evidence before it to deny the -15- motion and conclude that defendant’s waiver of his rights was
knowing, willing, and understanding. See N.C. Gen. Stat. § 7B-
2101(d).
Second, even assuming that defendant’s trial counsel would
have been successful in keeping defendant’s custodial statements
out of evidence, there is no reasonable probability that the
result at trial would have been different. As discussed in more
detail above, the State produced a wide array of compelling
evidence, including defendant’s own testimony at trial, which
independently proved all of the essential elements of the charge
of assault with a deadly weapon inflicting serious injury.
Therefore, because defendant cannot establish that he was
prejudiced by his trial counsel’s failure to move to suppress
the custodial statements, we need not address whether counsel’s
behavior was deficient. See Harrison, 169 N.C. App. at 262, 610
S.E.2d at 411. Defendant’s argument is overruled.
IV. Indictment
Defendant’s final argument is that the short-form
indictment used to charge defendant was unconstitutional because
it did not separately allege premeditation or deliberation or a
specific felony upon which felony murder could have been based.
Defendant acknowledges that the North Carolina Supreme Court -16- decided this issue in the State’s favor in State v. Braxton, 352
N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000), and that this
Court has no authority to overturn that decision. Thus,
defendant merely presents this issue to preserve it for later
review, and his argument is overruled.
Conclusion
After careful review, we remand for resentencing pursuant
to section 15A-1340.19B(a)(1). We find no prejudicial error as
to the trial court’s failure to enter findings under section 7B-
2101(d) or trial counsel’s failure to move to suppress
defendant’s custodial statements. Finally, defendant’s
contention as to the indictment is overruled.
NO PREJUDICIAL ERROR; REMANDED FOR RESENTENCING.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).