Opinion
No. COA15-665
04-19-2016
STATE OF NORTH CAROLINA v. JAVONTA MARQUEZ ELLIS AND STEPHON DEANDRE JENNINGS
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State, regarding defendant Javonta Marquez Ellis. Attorney General Roy Cooper, by Assistant Attorney General Peter A. Regulski, for the State, regarding defendant Stephon Deandre Jennings. Cooley Law Office, by Craig M. Cooley, for defendant-appellant Javonta Marquez Ellis. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant Stephon Deandre Jennings.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Wayne County, Nos. 12 CRS 53254-55 Appeal by defendants from judgments entered 15 September 2014 by Judge John E. Nobles in Wayne County Superior Court. Heard in the Court of Appeals 17 November 2015. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State, regarding defendant Javonta Marquez Ellis. Attorney General Roy Cooper, by Assistant Attorney General Peter A. Regulski, for the State, regarding defendant Stephon Deandre Jennings. Cooley Law Office, by Craig M. Cooley, for defendant-appellant Javonta Marquez Ellis. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant Stephon Deandre Jennings. McCULLOUGH, Judge.
Javonta Marquez Ellis ("defendant Ellis") and Stephon Deandre Jennings ("defendant Jennings") (collectively "defendants") appeal from judgments entered upon their convictions for first-degree murder under the felony murder rule. Based upon the reasons stated herein, we find no error.
I. Background
On 6 May 2013, defendants were indicted for first-degree murder in violation of N.C. Gen. Stat. § 14-17 and attempted robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87.
On 4 September 2013, defendant Ellis filed a "Motion for Severance and Non-Joinder." Defendant Ellis argued that defendants had mutually antagonistic defenses that would deny each a fair trial. Defendant Jennings joined in the motion for severance. On 30 June 2014, the State filed a "Motion and Order for Joinder[,]" moving that defendants be joined for trial. Following a hearing held on 6 August 2014, the trial court granted the State's motion for joinder and denied defendants' motion for severance.
On 22 August 2014, defendant Ellis filed a "Motion to Suppress Evidence of Co-Defendant" and a "Motion for Mistrial for Prejudice to Defendant."
Defendants' trial commenced at the 2 September 2014 criminal session of Wayne County Superior Court, the Honorable John E. Nobles, presiding. On 3 September 2014, defendant Ellis argued his mistrial and suppression motions, which the trial court denied.
The State's evidence tended to show as follows: On the evening of 13 June 2012, Kevin Bell ("the victim"), Travis James ("James"), and Brandon Leach ("Leach") spent time recording music at a residence located on Hinson Street. Around midnight, the victim, James, and Leach drove to the victim's apartment located on 409 Slaughter Street. The victim lived with his fiancé, Shekita James, and Shekita James' daughter, Kadedia James. The three men stood outside in front of the apartment and talked.
James walked across the street to the apartment of Crystal Dickens ("Dickens"). Soon thereafter, James left Dickens' apartment and walked back across the street towards the victim's apartment to join the victim and Leach. James testified that as he was walking out of Dickens' apartment, he turned to his left and saw two men walking up Lincoln Drive. Leach also testified that he saw two men standing in the street. These two men approached the victim, Leach, and James and stated "Oh, y'all already know what it is. Give it up." Leach and James believed that they were being robbed. Leach and James testified that each of the men pulled out a gun but one of the guns discharged. The victim, Leach, and James attempted to run away. Leach and James heard the victim yell "Ahh" and state that he had been shot. James ran towards Dickens' apartment and told Dickens to call the police. Leach ran across the street and called 911. James went back outside and saw the victim lying in the street. The victim died before the paramedics and police arrived.
Karen Zwirblia ("Zwirblia"), an investigator with the Goldsboro Police Department, testified that she arrived on the scene at approximately 12:45 a.m. Zwirblia interviewed Leach at approximately 1:09 a.m. Leach described the two perpetrators as follows: the first suspect was a 16 or 17 year old black male, wearing a black shirt, 5 feet 8 inches tall, slender build, wearing a black bandana hanging out from under a black hat, dark complexion; the second suspect was a 16 or 17 year old black male, wearing a black shirt and black hat, 6 feet tall, slender build, brown complexion. Zwirblia then interviewed James at approximately 1:27 a.m. James described the two perpetrators as follows: the first suspect was a black male wearing a black shirt, no hat, dark complexion, 5 foot 6 inches tall; the second suspect was a black male, wore a white shirt, black shorts and a black hat, was 5 feet 8 inches tall, slender, light complexion, long dreadlocks hanging past his shoulders. James identified the second suspect as the individual who had the gun and stated, "Y'all know what it is, give it up."
Zwirblia testified that during the course of the investigation, she had four individuals on the list of suspects: Nebraska Best ("Best"), Billy Ham, Jr. ("Ham"), and defendants. Each suspect was placed in a photographic line-up. On 14 June 2012, James was shown a photographic lineup that included suspect Best but James did not identify anyone out from that lineup as a perpetrator. James was then shown a second lineup that included defendant Jennings on 15 June 2012. James selected defendant Jennings as one of the perpetrators and stated that he was "very confident" in his identification. At trial, James testified that it was defendant Jennings who pulled out a gun and discharged it.
Zwirblia testified that on 14 June 2012, Leach was shown a line-up that included suspect Ham. Leach did not select Ham as one of the perpetrators. On 15 June 2012, Leach was shown a line-up that included defendant Jennings and Leach did not make an identification. On 26 June 2012, Leach was shown a lineup that included defendant Ellis. Leach identified defendant Ellis as one of the perpetrators and stated that he was "exactly confident" and "100 percent sure" of his selection. At trial, Leach testified that defendant Ellis had a gun on the night of 14 June 2012 but that he had "froze" and did not fire his gun.
Brittany Artis ("Artis") testified that in June of 2012, she lived at 905B Slaughter Street. On the night of 14 June 2012, Artis heard gunshots, went outside, and saw the victim lying on the ground. She provided a statement to police that she had seen defendants in the neighborhood prior to and after the shooting. Artis provided that defendant Jennings was wearing a "black shirt, shorts or jeans both times I saw him."
Crystal Coley ("Coley") testified she was in the vicinity of Olivia Lane and Slaughter Street when she saw blue lights near her mother's house, located at 804 Olivia Lane, and a sheet on the ground. Coley testified that she saw defendant Jennings on a porch next to her mother's house. Defendant Jennings was talking on the phone and "acting like something was wrong, like he had something on his mind." Coley overheard defendant Jennings say into the phone, "I hope she didn't see me," or "hope he didn't see me, I think they saw me[.]"
Steven Powers ("Powers"), a corporal with the Goldsboro Police Department, testified that he processed the crime scene. Powers found a .410 revolver handgun in close proximity to the victim's body. The weapon had fired one round. Powers also recovered a 9 millimeter shell casing from the ground and a bullet that had entered the door of an apartment.
Samuel Simmons ("Simmons"), an expert in forensic pathology, testified that he performed an autopsy of the victim on 14 June 2012. Simmons testified that in his opinion, the cause of the victim's death was a single "gunshot wound that involved his left arm and his chest." Simmons opined that the barrel of the weapon used to shoot the victim was not closer than three to four feet away, "probably at least that far away, if not farther." The caliber of the bullet used was "at least a medium caliber projectile[,]" at least the size of a .38 caliber. Simmons testified that the victim's gunshot wound would be consistent with a 9 millimeter or .45 caliber type wound. On 25 June 2012, Zwirblia and another investigator went to the residence of defendant Ellis and observed a .45 caliber magazine in his living room.
Neither defendant Ellis nor defendant Jennings testified on their own behalf. However, defendants' evidence tended to show as follows: Chiquita Coley ("Coley"), defendant Ellis' aunt, testified that on 13 June 2012, her family threw a cookout at her residence. Coley testified that defendant Ellis was at the cookout all day until about 9:00 p.m. when he walked back to the apartment that he shared with his grandmother which was located right across the street. Linda Ellis, defendant Ellis' grandmother, testified that in 2012 she was living at 402 South William Street with defendant Ellis. Linda Ellis testified that on 13 June 2012, Coley threw a cookout for the family. Defendant Ellis arrived at her residence after the cookout and Linda Ellis testified, "I can't remember exactly what time it was. I know it was late and he went back there to his room." Linda Ellis testified that defendant Ellis was at her residence the next morning, on 14 June 2012, and that he did not ask her permission to leave the house that night. Linda Ellis testified that as to the .45 caliber magazine that Zwirblia saw in her residence on 25 June 2012, Linda Ellis had found it while raking her backyard and brought it inside.
Lavonne Carol ("Carol") testified that she lived at 907B Hugh Street and on the evening of 13 June 2012, she heard two gunshots that went off at about midnight and 12:30 a.m. She looked out of her kitchen window and saw "two boys jump the ramp, coming through the pathway and when they hit Hugh Street, I seen them. Both of them were tall and skinny. One had dreadlocks. The other one didn't." Carol testified that she had known defendant Ellis since he was a child and that defendant Ellis was not one of the boys she saw jumping the ramp and running by her window.
Jeffrey Davis ("Davis") testified that on 13 June 2012, he was in the same neighborhood where the shooting occurred, visiting his daughter. He was sitting on his daughter's porch when he heard gunshots. About five minutes later, Davis walked across the street and saw two men running down Hugh Street and they almost bumped into him. One of the men had a dark complexion, was about 6 feet tall, with a short haircut. The other man had a light complexion and was shorter, with dreadlocks and a goatee. The shorter man had a gun hanging out of his shorts. Davis testified that after seeing defendants' pictures in the newspaper, he did not believe they were the two men he saw running in the street on the evening of 13 June 2012.
On 9 September 2014, defendant Jennings filed a "Motion for Mistrial Due to Improper Joinder of Defendants at Trial, and Incorporated Memorandum in Support Thereof." The trial court denied this motion.
On 15 September 2014, a jury found defendants guilty of first-degree murder under the felony murder rule and guilty of attempted robbery with a dangerous weapon. The trial court arrested defendants' attempted robbery with a dangerous weapon convictions. Defendant Ellis was sentenced to life imprisonment with the possibility of parole. Defendant Jennings was sentenced to life imprisonment without parole.
Defendants appeal.
II. Discussion
On appeal, defendants argue that the trial court erred by granting the State's joinder motion and by denying their motions to sever.
"A trial court's denial of a motion to sever will not be disturbed on appeal absent an abuse of discretion." State v. Agubata, 92 N.C. App. 651, 660, 375 S.E.2d 702, 708 (1989). Under N.C. Gen. Stat. § 15A-927(a)(2), "when a pre-trial motion to sever is made, failure to renew the motion before or at the close of all the evidence affects a waiver of any right to severance." Id. (quotation marks omitted). "If a defendant waives his right to sever, our review is limited to reviewing whether the trial court abused its discretion at the time of its decision to join." State v. Larkin, ___ N.C. App. ___, ___, 764 S.E.2d 681, 691 (2014) (emphasis added).
Here, defendant Ellis filed a pre-trial "Motion for Severance and Nonjoinder" on 4 September 2013. Defendant Jennings joined in on the motion for severance. On 30 June 2014, the State filed a "Motion and Order for Joinder[,]" moving that defendants be joined for trial. Following a hearing held on 6 August 2014, the trial court granted the State's motion for joinder and denied defendants' motions for severance.
Prior to the jury being impaneled, defendant Ellis moved for a mistrial based on a written motion filed 2 August 2014. Counsel for defendant Ellis stated that "I need to make that motion for a mistrial for prejudice to the Defendant based on the fact that these cases have been joined." The trial court denied this motion. On 9 September 2014, during the State's case-in-chief, defendant Jennings filed a "Motion for Mistrial Due to Improper Joinder of Defendants at Trial, and Incorporated Memorandum in Support Thereof." The trial court addressed and denied this motion.
Defendants were required to renew their motion to sever before or at the close of all the evidence, but the record demonstrates that defendants failed to do so. Instead, defendants only moved for dismissal based on insufficiency of the evidence, which was denied. After the verdicts were entered but before defendant Ellis' sentence was announced, counsel for defendant Ellis made a "motion for mistrial because of the joinder[.]" This was also denied by the trial court. Consequently, defendants have waived their right to sever and our review is limited to reviewing whether the trial court abused its discretion at the time of its decision to join. State v. Tirado, 358 N.C. 551, 564, 599 S.E.2d 515, 526 (2004) (stating that "[a] trial court's ruling on a motion for joinder is reviewed for abuse of discretion in light of the circumstances of the case, and the ruling will not be disturbed on appeal absent a showing that the joinder caused the defendant to be deprived of a fair trial").
"There is a strong policy in North Carolina favoring the consolidation of the cases of multiple defendants at trial when they may be held accountable for the same criminal conduct." State v. Barnes, 345 N.C. 184, 220, 481 S.E.2d 44, 63 (1997). Pursuant to N.C. Gen. Stat. § 15A-926(b)(2) charges against two or more defendants may be joined for trial when "each of the defendants is charged with accountability for each offense" or when "the several offenses charged" were "part of a common scheme or plan" or "part of the same act or transaction," or "so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others." N.C. Gen. Stat. § 15A-926(b)(2) (2015).
In the present case, defendants were charged with accountability for each offense, first-degree murder and attempted robbery with a dangerous weapon. These offenses arose out of the same set of operative facts - the same series of events at the same time, place, and occasion; involved the same victim; involved the same witnesses; and involved a common scheme or plan. Therefore, "the prerequisite necessary for the trial court to consider joinder was satisfied and we find no abuse of discretion in the joinder of these trials." State v. McDonald, 163 N.C. App. 458, 464, 593 S.E.2d 793, 797 (2004). Accordingly, defendants' arguments are overruled.
III. Conclusion
For the foregoing reasons, we hold that defendants received a fair trial, free of prejudicial error.
NO ERROR.
Judges BRYANT and GEER concur.
Report per Rule 30(e).