STATE v. MARKS (2019)

William Ryan Marks (“defendant”) appeals from judgment entered on his conviction of first degree murder. For the reasons stated herein, we find no error.

I. Background

On 1 May 2017, a Forsyth County Grand Jury indicted defendant for the first degree murder of James Nicholas Naylor (“Mr. Naylor” or “the victim”). The matter came on for trial on 4 December 2017 in Forsyth County Superior Court, the Honorable Stanley L. Allen presiding. The State's evidence tended to show as follows.

Defendant moved out of the home he shared with his wife, now ex-wife, Amy Marks (“Ms. Marks”), in 2011. After the couple divorced in July 2012, the home belonged solely to Ms. Marks. However, Ms. Marks allowed defendant to move back into the home in late 2013 because his trailer became uninhabitable due to roof damage and mold infestation. Both of their sons, Joshua Marks and Andrew Marks, also lived in the home.

In 2015, Mr. Naylor, a friend of Andrew Marks, moved into Ms. Marks’ home. Ms. Marks was concerned defendant would not get along with Mr. Naylor, and told defendant he had to “behave.” Nevertheless, defendant began to have angry outbursts that occurred what “seemed like every day” and baselessly accused Ms. Marks of allowing Mr. Naylor to stay at the home because she was having sexual relations with him. He also accused Mr. Naylor of “mooching,” and became angry whenever he was unable to borrow his son's car because Mr. Naylor drove the car to work.

Defendant's behavior upset his family and Mr. Naylor. Everyone “[hid] in their own room[s]” to avoid “hear[ing] [defendant's] voice.” As a result, Ms. Marks told defendant he needed to find someplace else to live.

Around 10:00 or 11:00 a.m. on 15 December 2015, Mr. Naylor went to the kitchen to make breakfast. He wore headphones so that he could “tune [ ] out” defendant, who was sitting in the living room, next to the kitchen. Defendant began to yell at Mr. Naylor. Hearing the conflict, Joshua Marks left his brother's bedroom and went to the hallway, where he could see defendant confronting Mr. Naylor in the kitchen, saying “that's why you can't hear me, you got those damn headphones on.”

Joshua Marks observed defendant and Mr. Naylor go into the living room to continue the conversation. Defendant repeatedly called Mr. Naylor “a mooch” and a “n*****.” Defendant stated it was his house, and Mr. Naylor replied, “no, it's not, it's [Ms. Marks’] house and we're both guests here.” Defendant continued insulting Mr. Naylor, and then disappeared from the room into Ms. Marks’ bedroom, where she stored a rifle. He returned to the living room holding the rifle. Mr. Naylor said, “you're making a threat with a gun[,]” and defendant “clicked the gun back into place.” Mr. Naylor told defendant, “if I live, I'm gonna to [sic] press charges.”

Joshua Marks went to his bedroom to try to call Ms. Marks. A few minutes later, Joshua Marks heard multiple gunshots fire. He called 911. While on the phone with a 911 operator, he went back to the living room, where he saw defendant holding the gun and Mr. Naylor covered in blood. Defendant tried to get Joshua Marks to end the call with 911 “countless times[,]” but Joshua Marks refused. Defendant stashed the rifle in Ms. Marks’ closet and left the home before law enforcement arrived.

Emergency responders were unable to save Mr. Naylor. He died from multiple bullets entering his chest and right shoulder. Five bullet fragments were recovered from his body, likely parts of three bullets, two of which followed an upward trajectory. The other bullet followed a downward trajectory, suggesting the victim had been shot while on his knees, or on the floor. Four spent shell casings were recovered from the area between the living room and the dining room.

Deputy Ben Wetter (“Deputy Wetter”) was conducting routine patrol in the area surrounding Ms. Marks’ home when dispatch broadcasted information about the shooting, including a description of defendant. Because Deputy Wetter was close by, he circulated “the area to look for suspects or anything related to the call.” He located defendant about a quarter mile from Ms. Marks’ home. The deputy asked defendant whether he had a firearm. Defendant responded, “no sir.” Deputy Wetter asked where he dropped the firearm, and defendant replied, “it's at the house.” Other officers began to arrive on the scene.

Deputy Wetter asked defendant, “what's going on today[,]” and defendant said, “ex-wife let this black guy move in. He's been out of service for like six years. He had a place to stay and all and lost his job. His girlfriend threw him out so she took him in as a good-points benefit on her resume with Jesus.” Then, defendant said, “this morning he charged me and I shot him.” Defendant said he argued with Mr. Naylor before shooting him because Mr. Naylor poured grease down the kitchen drain while cooking. Officers placed defendant in the back of a patrol car.

The lead investigator, Investigator Charles E. Neblett (“Investigator Neblett”), arrived and advised defendant that he “wanted to speak with [him] in regard to the incident that occurred at [the home] but before doing so [he] would need to read him and advise him of his Miranda rights.” Investigator Neblett testified that defendant did not answer any questions, and as Investigator Neblett began to read defendant his Miranda rights, defendant immediately stopped him by saying, “I want an attorney.”

On 13 December 2017, the jury found defendant guilty of first degree murder. The trial court sentenced defendant to life imprisonment without parole.

Defendant appeals.

II. Discussion

Defendant argues the trial court plainly erred by allowing testimony regarding defendant's refusal to answer an investigator's questions and his request for an attorney in violation of defendant's constitutional right to be free from self-incrimination, and his constitutional right to counsel.

Defendant alleges plain error because he did not object on this basis at trial. N.C.R. App. P. 10(a)(2), (a)(4) (2019). Despite the general rule that the failure to raise a constitutional issue at trial waives that issue for appeal, plain error may be applied in cases such as the one presently before our Court, “in which the defendant asserted on appeal that the introduction of evidence and testimony violated their constitutional rights” if plain error is specifically and distinctly contended on appeal. State v. Stroud, ––– N.C. App. ––––, ––––, 797 S.E.2d 34, 43, appeal dismissed, disc. review denied, 369 N.C. 754, 799 S.E.2d 872 (2017) (citing State v. Moore, 366 N.C. 100, 104-105, 726 S.E.2d 168, 172 (2012); State v. Raines, 362 N.C. 1, 16-17, 653 S.E.2d 126, 136 (2007)).

To establish the trial court plainly erred, defendant must “demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice–that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and internal quotation marks omitted). “In order to ensure plain error is reserved for the exceptional case, ․ plain error requires a defendant to show that the prejudicial error was one that seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Grice, 367 N.C. 753, 764, 767 S.E.2d 312, 321 (2015) (citation and internal quotation marks omitted).

The Fifth Amendment to the Constitution of the United States guarantees the right to remain silent, and the Sixth Amendment guarantees an individual “the right ․ to have the [a]ssistance of [c]ounsel for his [defense]” in all criminal prosecutions. U.S. Const. amends. V, VI. Neither “a defendant's exercise of his constitutionally protected right[ ] to remain silent[,]” nor his exercise of his right “to request counsel during interrogation” may be used against him at trial. State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994) (citing State v. Ladd, 308 N.C. 272, 283-84, 302 S.E.2d 164, 171-72 (1983)). Thus, with regard to a defendant's right to remain silent, our Supreme Court has held, “[e]xcept in certain limited circumstances, any comment upon the exercise of [the right to remain silent], nothing else appearing, [is] impermissible. An improper adverse inference of guilt from a defendant's exercise of his right to remain silent cannot be made, regardless of who comments on it.” Moore, 366 N.C. at 105, 726 S.E.2d at 172 (citations and internal quotation marks omitted) (alterations in original). Likewise, “[t]he invocation of the right to counsel is a constitutional privilege that cannot be admitted into evidence to be used against a defendant.” State v. Houser, 239 N.C. App. 410, 418, 768 S.E.2d 626, 632 (citing Ladd, 308 N.C at 284, 302 S.E.2d at 172), disc. review denied, 368 N.C. 281, 775 S.E.2d 869 (2015).

On appeal, defendant argues the State improperly elicited testimony from Investigator Neblett that commented on his invocation of his right to silence and his right to counsel as follows:

[THE STATE]: Okay. Investigator Neblett, on December 15, 2015 what was you [sic] position on that particular date, what was your title?

[INVESTIGATOR NEBLETT]: On that particular day I was assigned as a Clemmons investigator. I was the investigator for the Village of Clemmons, which is how I responded to this particular incident.

[THE STATE]: And specifically as it relates to this incident did you -- were you ever dispatched out to [Ms. Marks’ home] on December 15, 2015?

[INVESTIGATOR NEBLETT]: Yes, sir, I was.

[THE STATE]: Okay. And for what reason were you dispatched there?

[INVESTIGATOR NEBLETT]: I was initially dispatched out to the address ․ in regards to an individual placing a 911 call stating that his friend had been shot. ․

․

[THE STATE]: And what was the first thing you did upon arrival?

[INVESTIGATOR NEBLETT]: Upon arrival I actually met with patrol units already on scene at the intersection of Stony Brook and Flaming Tree. At that time they had the defendant in the back of a patrol vehicle.

[THE STATE]: What did you do?

[INVESTIGATOR NEBLETT]: I spoke briefly with the patrol units on scene to kind of ascertain a little bit of information before making my way to speak with the defendant who was in the back of that patrol car.

[THE STATE]: Okay. And did you have an opportunity to speak with the defendant?

[INVESTIGATOR NEBLETT]: Yes, sir, I did. I spoke with him briefly. He indicated -- again, the defendant, Mr. Marks, indicated he was a diabetic. He had had an issue with a previous surgery on his shoulder, spoke very briefly with regard to that matter. And then I advised him that I wanted to speak with [him] in regard to the incident that occurred at [Ms. Marks’ home] but before doing so I would need to read him and advise him of his Miranda rights.

[THE STATE]: What are Miranda rights?

[INVESTIGATOR NEBLETT]: It's just an indication that the individual does have the right to remain silent and ask for an attorney in regards to feeling if they are in custody or physically being in custody so they don't have to answer any questions without the presence of an attorney.

[THE STATE]: And did the defendant answer any questions?

[INVESTIGATOR NEBLETT]: He did not. As I began to read him his Miranda rights he immediately stopped my speaking by saying “I want an attorney.”

[THE STATE]: What did you do next?

[INVESTIGATOR NEBLETT]: At that time I was carrying a digital voice recorder to document the incident. I told him I thank him for his time. I immediately stepped away from the vehicle with no further questions.

Assuming arguendo Investigator Neblett improperly commented on defendant's invocation of his right to silence and his right to counsel, the testimony did not constitute plain error. To assess plain error in this context, our Court considers the following factors, none of which are determinative:

(1) whether the prosecutor directly elicited the improper testimony or explicitly made an improper comment; (2) whether the record contained substantial evidence of the defendant's guilt; (3) whether the defendant's credibility was successfully attacked in other ways in addition to the impermissible comment upon his or her decision to exercise his or her constitutional right to remain silent; and (4) the extent to which the prosecutor emphasized or capitalized on the improper testimony by, for example, engaging in extensive cross-examination concerning the defendant's post-arrest silence or attacking the defendant's credibility in closing argument based on his decision to refrain from making a statement to investigating officers.

State v. Richardson, 226 N.C. App. 292, 302, 741 S.E.2d 434, 442 (2013) (footnote omitted).

Here, although the prosecutor did elicit the testimony that defendant did not answer the investigator's questions, the prosecutor did not emphasize the testimony that defendant invoked his constitutional rights.

The prosecutor also successfully attacked defendant's credibility in other ways by showing defendants’ statement to law enforcement that he shot the victim because the victim “charged” him was contrary to the evidence. First, the ballistics evidence belied defendant's statement. One of the bullets that entered the victim's body followed a downward trajectory, suggesting the victim had been shot while on his knees, or on the floor—not “charging” defendant or acting as an aggressor. Second, Joshua Marks testified that, despite speaking with defendant while he was in jail about the shooting, defendant never claimed the victim was the aggressor. Rather, defendant admitted to both Joshua Marks and Ms. Marks that he “messed up big time.” Further, he told Ms. Marks he had done the family “a favor” by taking Mr. Naylor's life.

Additionally, there is substantial evidence of defendant's guilt in the record. Defendant admits to shooting the victim, and only contends it was not murder in the first degree because there is insufficient evidence of premeditation and deliberation. We disagree.

Although not an exhaustive list, the following may be considered as evidence of premeditation and deliberation: (1) ill-will towards the victim, see State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984); (2) leaving an altercation and returning with a deadly weapon, see, e.g., State v. Rogers, 323 N.C. 658, 666, 374 S.E.2d 852, 857 (1989) (considering the fact that the defendant left an altercation in a house to retrieve a gun from his car and then returned to the house to shoot the victim as evidence of premeditation and deliberation); (3) “the dealing of lethal blows after a [victim is] felled [or] rendered helpless[,]” Hamlet, 312 N.C. at 170, 321 S.E.2d at 843; and (4) grossly excessive force, such as the shooting of a victim multiple times at close range. See State v. Truesdale, 340 N.C. 229, 233, 456 S.E.2d 299, 302 (1995).

In the present case there was substantial evidence that the killing was premeditated and deliberated. First, the evidence shows defendant had ill-will towards the victim, and openly insulted him, even expressing racial animus by calling him a “n*****” multiple times. He also accused the victim of “mooching” and having sexual relations with his ex-wife. Overall, defendant's behavior towards the victim was so insufferable that Ms. Marks asked him to move out of her home.

Second, the day of the murder, defendant initiated an argument with the victim, and then left the altercation to retrieve a rifle. He returned with the rifle, and his son heard the unarmed victim state defendant threatened him with it. Third, the evidence tends to show defendant shot the victim after he was felled or rendered helpless, and used grossly excessive force. Defendant shot the victim at least three times at close range. One of the bullets traveled at a downward angle, creating an inference that the victim was either on his knees or on the ground when shot. After the victim was shot, defendant repeatedly urged his son to hang up on 911 “[i]n a hateful tone.” In light of all of the substantial evidence in the record, this Richardson factor weighs strongly against a determination of plain error.

Therefore, given the substantial evidence of defendant's guilt of the crime charged, the brief nature of the testimony, and the fact that the prosecutor did not emphasize the testimony and undermined defendant's credibility in other ways, we hold the challenged testimony did not rise to the level of plain error.

III. Conclusion

For the reasons stated herein, we find no plain error.

NO ERROR.

Report per Rule 30(e).

ARROWOOD, Judge.

Judges INMAN and YOUNG concur.