State v. Jefferson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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.
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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).