Appeal by defendant from judgments entered 9 February 2006 by
Judge Michael Morgan in Durham County Superior Court. Heard in the
Court of Appeals 25 January 2007.
Attorney General Roy Cooper, by Assistant Solicitor General
John F. Maddrey, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Defendant Shelton Deangelo Epps appeals from his convictions
for felony murder and first degree kidnapping. This appeal arises
out of a murder that occurred in the course of a robbery of the
victim's car by defendant and two friends. On appeal, defendant
primarily argues that the trial court violated his Sixth Amendment
right to confront witnesses by admitting the statement of a non-
testifying co-defendant. Because, however, the only significant
distinction between defendant's confession _ which acknowledged his
participation in the events _ and the statement of the co-defendant
was the identity of the shooter, we can perceive no basis for
concluding that the jury would have rendered a not guilty verdict
in the absence of the statement. We, therefore, hold that anyerror in admitting the statement was harmless beyond a reasonable
The State's evidence at trial tended to show the following
facts. On the morning of 17 February 2004, Sean Owen told his
sister that he had communicated with an individual over the
Internet, was meeting him for the first time in person that
afternoon, and expected to rendezvous with him for sex later that
evening. Owen left the house in his mother's burgundy Ford
On the same day, Matthew Taylor and Derrick Maiden were let
out of their high schools early on account of snow. They arrived
at Taylor's grandmother's house in Durham, North Carolina at around
noon. Defendant, who was Taylor's cousin and did not attend high
school, was already there. While Maiden and defendant played video
games, Taylor left the room with his cellular phone.
When Taylor returned, he told defendant and Maiden that a car
was on its way. At trial, Maiden testified that he and Taylor had
previously discussed meeting a gay man via the Internet and robbing
him of his car. The group went outside to the porch and began
talking about stealing the car. Taylor went back inside and
returned with a gun.
Defendant, Taylor, and Maiden walked to a nearby "clubhouse"
where they expected to meet the car. When they arrived, they saw
that their intended victim was already there, parked in a burgundyFord Contour. At trial, Maiden identified a photograph of Owen as
the man in the car.
Defendant, Taylor, and Maiden got into the Contour with Owen,
who agreed to drive the group to a nearby convenience store to buy
a cigar to use for smoking marijuana. After getting the cigar,
Taylor instructed Owen to drive to a local park, where they got out
of the Contour because Owen did not want to smoke marijuana in the
car. As the group walked toward a picnic table, Owen was shot in
the head, although the evidence at trial conflicted as to whether
it was defendant or Taylor who actually pulled the trigger.
Despite the injury, Owen immediately began running and yelled
"please don't do this to me."
Defendant, Taylor, and Maiden chased Owen and, although Owen
had already dropped his car keys, the group began beating him.
Owen fell to the ground and, while struggling, was shot a second
time, punched, kicked, stomped, and choked. Defendant, Taylor, and
Maiden then carried Owen to a nearby riverbank and "kicked him in."
The group did not leave until they heard the body hit the water.
Owen's cause of death was later determined to be drowning.
After dropping Owen into the river, defendant, Taylor, and
Maiden returned to Owen's car, and Taylor drove the group back to
his grandmother's house. When, a few days later, Taylor parked the
car in a fire zone at his school, school resource officers placed
a boot on the vehicle. Taylor had a friend, Jemetrus Harris, pay
to have the boot removed and retrieve the car. When Harris waslater questioned by officers with the Durham Police Department, he
informed them that he had retrieved the car for Taylor.
Owen's body was removed from the river and identified on 21
February 2004. After one of Taylor's friends told him that the
police were looking for Taylor and also Owen's vehicle, defendant,
Taylor, and Maiden wiped down the interior of Owen's car with
bleach to remove any fingerprints. The following morning, 22
February 2004, they parked the car in a dead end street, saturated
its interior with lighter fluid, and set the car on fire.
On 4 March 2004, police arrested defendant, Taylor, and
Maiden. Defendant was indicted for murder and first degree
kidnapping. A jury found defendant guilty of first degree murder,
under the felony murder rule, and first degree kidnapping. The
jury declined to find defendant guilty of first degree murder based
on premeditation and deliberation. The trial court sentenced
defendant to life imprisonment without the possibility of parole
for the first degree murder conviction and imposed a consecutive
sentence of 73 to 97 months imprisonment for the first degree
kidnapping conviction. Defendant timely appealed to this Court.
Defendant first argues that the trial court violated his Sixth
Amendment right of confrontation by permitting the State, over
defendant's objection, to introduce the statement of a non-
testifying and previously-tried co-defendant. When a violation of
a defendant's right to confrontation is found on appeal, defendant
will prevail unless the State can show that any such violation washarmless beyond a reasonable doubt. State v. Thompson
, 359 N.C.
77, 114, 604 S.E.2d 850, 875 (2004), cert. denied
, 546 U.S. 830,
163 L. Ed. 2d 80, 126 S. Ct. 48 (2005). See also
N.C. Gen. Stat.
§ 15A-1443(b) (2005) ("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
In Crawford v. Washington
, 541 U.S. 36, 158 L. Ed. 2d 177, 124
S. Ct. 1354 (2004), the United States Supreme Court held that
"[w]here testimonial evidence is at issue, . . . the Sixth
Amendment demands what the common law required: unavailability and
a prior opportunity for cross-examination." Id.
at 68, 158 L. Ed.
2d at 203, 124 S. Ct. at 1374. Although the Supreme Court did not
set out a comprehensive definition of "testimonial evidence," it
did conclude that "[s]tatements taken by police officers in the
course of interrogations" are testimonial. Id.
at 52, 158 L. Ed.
2d at 193, 124 S. Ct. at 1364.
The trial court admitted a statement Taylor had given during
police interrogation. According to Taylor's statement, defendant
and Maiden were the primary culprits in Owen's murder, and Taylor
had "nothing to do with [Owen's] death" other than merely being
present during the offense. Because Taylor's statement was
provided to police during interrogation, it is testimonial under
, and, therefore, would be admissible only if Taylor was
unavailable at trial and
if defendant had a prior opportunity forcross-examination. State v. Pullen
, 163 N.C. App. 696, 702, 594
S.E.2d 248, 252 (2004).
Even if admission of Taylor's statement was error under
, however, we hold the error was harmless beyond a
reasonable doubt. "To find harmless error beyond a reasonable
doubt, we must be convinced that there is no reasonable possibility
that the admission of this evidence might have contributed to the
conviction." State v. Ladd
, 308 N.C. 272, 284, 302 S.E.2d 164, 172
(1983). A constitutional error is sufficiently harmless under this
standard when there is other, overwhelming evidence of defendant's
guilt. State v. Thompson
, 118 N.C. App. 33, 42, 454 S.E.2d 271,
276, disc. review denied
, 340 N.C. 262, 456 S.E.2d 837 (1995).
Here, defendant's statement to police was admitted at trial
without objection. In that statement, defendant admitted to
participating with Maiden and Taylor in robbing and beating Owen
and then dumping him in the river. Likewise, Maiden testified at
trial without objection that he, defendant, and Taylor all
participated in the robbery and beating. The only significant
distinction between defendant's, Taylor's, and Maiden's accounts of
the events was who actually shot Owen. The identity of the shooter
was, however, immaterial to the conviction, given that the jury
convicted defendant of first degree murder under the felony murder
rule, and the evidence was undisputed that defendant participated
in the armed robbery and beating of the victim, including throwing
him into the river, which was the actual cause of death. See State
, 355 N.C. 294, 306-07, 560 S.E.2d 776, 784 (upholdingconviction for first degree murder under felony murder rule on
acting in concert grounds), cert. denied
, 537 U.S. 1005, 154 L. Ed.
2d 403, 123 S. Ct. 495 (2002).
In light of the overwhelming evidence establishing that
defendant, Maiden, and Taylor jointly carried out Owen's robbery,
kidnapping, and murder, we conclude that there is no reasonable
possibility that the admission of Taylor's statement contributed to
defendant's conviction. Consequently, any error resulting from the
admission of Taylor's statement was harmless beyond a reasonable
Defendant next argues that the trial court erred by failing to
dismiss the kidnapping indictment for insufficient evidence
because, according to defendant, the State failed to present any
evidence that Owen was restrained in any way beyond that required
for robbery with a dangerous weapon. Our Supreme Court has held:
It is self-evident that certain felonies
, forcible rape and armed robbery) cannot
be committed without some restraint of the
victim. We are of the opinion, and so hold,
that G.S. 14-39 was not intended by the
Legislature to make a restraint, which is an
inherent, inevitable feature of such other
felony, also kidnapping so as to permit the
conviction and punishment of the defendant for
both crimes. To hold otherwise would violate
the constitutional prohibition against double
jeopardy. Pursuant to the above mentioned
principle of statutory construction, we
construe the word "restrain," as used in G.S.
14-39, to connote a restraint separate and
apart from that which is inherent in the
commission of the other felony.
State v. Fulcher
, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). As a result, the question on appeal is "whether there was
substantial evidence that the defendant restrained . . . the
victim separate and apart from any restraint necessary" to
accomplish the armed robbery. State v. Mebane
, 106 N.C. App. 516,
532, 418 S.E.2d 245, 255, appeal dismissed and disc. review denied
332 N.C. 670, 424 S.E.2d 414 (1992). See also State v. Beatty
N.C. 555, 559, 495 S.E.2d 367, 369 (1998) (noting "a person cannot
be convicted of kidnapping when the only evidence of restraint is
that 'which is an inherent, inevitable feature' of another felony
such as armed robbery" (quoting Fulcher
, 294 N.C. at 523, 243
S.E.2d at 351)). We hold that there was sufficient evidence, and
the trial court properly denied the motion to dismiss.
The State presented evidence that tended to show Owen was shot
in the head and immediately began running away. Defendant and the
others caught Owen and _ after he dropped his keys _ punched,
kicked, choked, shot, and dragged Owen to a riverbank and then
dumped him into the water. All acts of violence subsequent to when
Owen abandoned his car and dropped his keys were acts of
"restraint" that were no longer necessary to rob Owen of his car.
See State v. Muhammad
, 146 N.C. App. 292, 296, 552 S.E.2d 236, 238
(2001) (sufficient evidence of restraint beyond what was required
for robbery existed when defendant placed victim in a choke hold,
hit him in the side three times, wrestled him to the floor, grabbed
him around the throat, and pointed a gun at his head). The trial
court, therefore, properly denied defendant's motion to dismiss the
Finally, defendant argues that the trial court erred in its
jury charge by repeating the instruction for acting in concert
three times _ one time each for robbery, kidnapping, and murder.
Defendant concedes the instruction itself was correct, but
nevertheless argues that "the multiple instructions by the court
clearly amounts to an expression of an opinion on the part of the
trial judge" that defendant was guilty.
We agree with the State that this argument is foreclosed by
State v. McDougald
, 336 N.C. 451, 461, 444 S.E.2d 211, 217 (1994),
in which our Supreme Court concluded that "[m]ere repetition of an
otherwise proper instruction does not constitute error." The Court
held that the fact that the trial judge "repeated the
instruction on flight with regard to three of the offenses with
which the defendant was charged, without more, does not constitute
an improper expression of opinion." Id.
As we see no principled
basis upon which to distinguish McDougald
, we overrule this
assignment of error.
We note that defendant also challenges the sufficiency of the
short-form indictment used to charge him with first degree murder.
Defendant concedes, however, that both our Supreme Court and this
Court have repeatedly upheld short-form indictments featuring
nearly identical language as sufficient to charge first degree
murder. See, e.g.
, State v. Hunt
, 357 N.C. 257, 263, 582 S.E.2d
593, 598, cert. denied
, 539 U.S. 985, 156 L. Ed. 2d 702, 124 S. Ct.
44 (2003); State v. Phillips
, 151 N.C. App. 185, 196, 565 S.E.2d697, 704 (2002). This Court is bound to follow the precedent of
our Supreme Court as well as prior decisions by panels of this
Court. State v. Jones
, 358 N.C. 473, 487, 598 S.E.2d 125, 133
(2004); State v. Scott
, __ N.C. App. __, __, 637 S.E.2d 292, 294
(2006), disc. review denied
, __ N.C. __, __ S.E.2d __, 2007 NC
LEXIS 235, 2007 WL 1063579 (Mar. 8, 2007). As only the Supreme
Court can revisit this issue, we must decline defendant's
invitation to "review [these] holdings."
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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