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Daniels v. Perry

United States District Court, W.D. North Carolina, Charlotte Division

September 24, 2014

GARY L. DANIELS, Petitioner,
v.
FRANK L. PERRY, LAWRENCE PARSONS, Respondents.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment, (Doc. No. 7), Respondent's Motion for Leave to File Excess Pages, (Doc. No. 8), and Petitioner's Motion for Summary Judgment, (Doc. No. 13). Petitioner is represented by Lauren E. Miller of North Carolina Prisoner Legal Services.

I. BACKGROUND

A. Procedural Background

Petitioner is a prisoner of the State of North Carolina, who, on April 6, 2011, in Mecklenburg County Superior Court, was convicted after trial by jury of first-degree murder and sentenced to life imprisonment without parole, in case 09 CRS 210578. On March 6, 2012, the North Carolina Court of Appeals filed an unpublished opinion finding no error, and on June 13, 2012, the Supreme Court of North Carolina denied petition for discretionary review. State v. Daniels , 722 S.E.2d 212 ( N.C. App.) (unpublished), review denied, 366 N.C. 221, 726 S.E.2d 182 (2012). Petitioner was represented at trial by Grady Jessup and North Carolina Prisoner Legal Services, Inc., and on appeal by Appellate Defender Staples Hughes and Assistant Appellate Defender Barbara Blackman.

Petitioner brings the following grounds for relief in the petition: (1) his right of due process was violated by the trial court's failure to suppress his statements that were made in custody and the police failed to advise him of his rights at the outset of interrogation; (2) Miranda warnings delivered in the midst of a continuing interrogation were ineffective to the point that a person in Petitioner's position would not have understood them to mean that he had a choice about continuing to talk; and (3) he clearly and unequivocally asserted his right to counsel, which was patently ignored by the interrogating officer in violation of his right to counsel during custodial interrogation. On January 3, 2014, Respondent filed the pending motion for summary judgment. On January 31, 2014, Petitioner filed his own summary judgment motion, and a response to Respondent's summary judgment motion. On February 18, 2014, Respondent filed a reply to Petitioner's response.

B. Underlying Facts

1. Charney Watt is Killed

On March 1, 2009, Charney Watt ("Charney") was an eighteen-year-old senior at Olympic High School in Charlotte, North Carolina, when Petitioner shot her in the forehead with a shotgun in an upstairs bedroom of his mother's house, ending her life. (Trial Tr. at 1376-79, 1665-66; 1692-93; 1778; Trial Tr., Doc. Nos. 1-11 to 1-20).[1] Petitioner and Charney had been dating since August 2008, the beginning of Charney's senior year. (Id. at 1379-82; 1389). Testimony at trial indicated that Petitioner and Charney had a volatile relationship, characterized by break-ups, reconciliations, and acts of violence by Petitioner. (Id. at 1406-08).

On March 1, 2009, the day of Charney's death at approximately 11:35 AM, Officer Harold Norman ("Officer Norman") of the Charlotte-Mecklenburg Police Department responded to a vehicle accident located about one mile from the street where Petitioner's mother lived. (Id. at 1484-85). Upon arrival, Officer Norman noted that a black BMW had run off the road, slid about 75 feet through muddy weeds, and come to rest against a tree. (Id. at 1485). Officer Norman also saw a black male, later identified as Petitioner, and a black female, later identified as Charney, standing in the street about seven to ten feet apart from each other. (Id. at 1485-86). No injuries were reported, and neither Petitioner nor Charney requested medical attention. (Id. at 1484; 1488).

When Officer Norman asked about the accident, Petitioner told Officer Norman that he was driving the speed limit when the black BMW hydroplaned and ran off the road. (Id. at 1487). Officer Norman told Petitioner that there was no way the black BMW could have slid such a distance and sustained such damage if Petitioner had been driving at the posted speed limit of 25 miles per hour. (Id. at 1487-88). Petitioner became argumentative and "tried to explain how it happened like that." (Id. at 1487). While Officer Norman was sitting in his patrol car filling out an accident report, Charney knocked on the window and requested Officer Norman's assistance. (Id. at 1490). Based on his conversation with Charney, Officer Norman approached Petitioner to speak with him about returning Charney's cell phone to her. (Id. at 1491). Petitioner told Officer Norman that Charney's cell phone was in a ditch on the opposite side of the road where it "fell" in the water. (Id. at 1491). Officer Norman then asked Petitioner, "[W]hy don't you do the right thing and get it out of the water for her[?]" (Id.). Petitioner refused to get Charney's cell phone. (Id.).

Subsequently, Officer Norman noticed that Charney was cold while she was standing alone in front of his patrol car, so he asked her if she would like to sit in his patrol car where it was warm. (Id.). While Charney was seated in his patrol car, Officer Norman finished his report and issued Petitioner a citation for driving too fast for conditions. (Id. at 1492-93). When Officer Norman served Petitioner with the citation, Petitioner again became argumentative. (Id. at 1493).

When asked at trial by the prosecutor where Petitioner and Charney were when he left the scene, Officer Norman responded, "I got out of the car and gave him the citation and had to allow her to get out of the vehicle." (Id. at 1493-94). After leaving the scene, Officer Norman drove to his team office about three and a half miles away, completed his paperwork, and printed his report regarding Petitioner's accident. (Id. at 1494-97). Shortly after retrieving his report from the printer, Officer Norman heard an emergency call transmitted over his law enforcement radio for officers to respond to Petitioner's mother's house, which Officer Norman recognized as the same address that was listed on the accident report he had just printed. (Id. at 1497). The emergency call from the residence was made at 1:18 PM. (Id. at 1429-30). Officer Norman then added himself as a responding officer to the call and went to the residence. (Id. at 1498).

When Officer Norman arrived at the residence, he found four officers who had entered the residence before him, a small group of civilians who were not members of law enforcement or emergency services, and Petitioner lying face down on the floor of the living room in front of a sofa with his head in his arms flailing around as if he were running. (Id. at 1498-99). Officer Norman recognized Petitioner's face when Petitioner raised his head to tell a female, later identified as Petitioner's mother, "I buried the gun under a tree behind the house and leave me alone." (Id. at 1499-1500). Petitioner made this statement when another officer was reviewing a consent to search form with his mother and not in response to any questions by law enforcement. (Id. at 1515-18). Later that day, Officer Norman noticed two homicide detectives in a wooded area behind the residence. (Id. at 1501). When Officer Norman walked to the wooded area himself, he found a shotgun that was later identified as the murder weapon under a dead pine tree that was lying on the ground. (Id. at 1501). The stock of the shotgun had been sawed off and the remaining handle was wrapped in electrical tape. (Id. at 1665-66).

Responding officers and emergency services personnel testified that there were massive amounts of blood and what appeared to be brain matter on the walls, on the ceiling, on the floor, and on several items in the upstairs bedroom of Petitioner's mother's house where Charney's body was found. (Id. at 1440-42; 1470). The State's forensic pathologist determined that Charney had sustained the type of injury associated with a shotgun wound that caused extensive destruction to the top of her head. (Id. at 1774). After reconstructing Charney's skull, the pathologist concluded that the entrance wound was in the center of Charney's forehead, above the bridge of her nose, above her eyebrows, and below her hairline. (Id. at 1778-79).

Detective Gary McFadden ("Det. McFadden") of the Charlotte-Mecklenburg Police Department arrived at Petitioner's mother's residence at 2:00 PM in response to a pager alert. (Id. at 1672-73). After obtaining information from other officers and speaking with Petitioner's mother, Det. McFadden attempted to talk with Petitioner, who was on the floor shaking as he had been since officers first arrived. (Id. at 1674-76). Det. McFadden first called Petitioner's name from a standing position, then knelt down beside Petitioner, touched Petitioner, and called Petitioner's name again. (Id. at 1676-77). Petitioner did not respond to Det. McFadden's efforts to communicate with him. (Id. at 1677). After talking again with Petitioner's mother and his supervisor, at 2:45 PM Det. McFadden called for a paramedic to assess Petitioner's condition. (Id.). Det. McFadden then checked Petitioner's pockets to see whether there was "anything in his pocket that he could have taken to put him in that state, or anything in his pockets and [sic] that would have injured us or him at that time." (Id. at 1678). Det. McFadden removed Petitioner's identification, some keys, some chapstick, and a Bic lighter from Petitioner's pockets and placed them on a table in Petitioner's mother's residence. (Id.).

At 2:58 PM, paramedic crew chief George Ross arrived. (Id. at 1535-36). Ross initially checked Petitioner's vital signs, found they were normal, and noted that Petitioner did not have any apparent illness or injury. (Id. at 1536). Ross then conducted a more thorough examination of Petitioner, including a head-to-toe survey for any kind of injury, placing Petitioner on a monitor, checking blood sugar, checking blood pressure, checking heart rate, checking respiratory rate, and checking for neurological response. (Id. at 1537). Checking for neurological response included a sternum rub, involuntary eye reflex, and self-preservation reflex. (Id. at 1537-39). Petitioner responded to the painful sensation of knuckles being rubbed against his sternum by grabbing Ross's hands and pushing them away to stop the sternum rub. (Id. at 1537-38). Petitioner responded to the stimulus of Ross's finger being placed uncomfortably close to his eye by the involuntary twitching or fluttering of his eyelid. (Id. at 1538). Petitioner responded to his own arm being lifted over his face and dropped by Ross by moving his arm as it fell so it would not come into contact with his face or head. (Id. at 1538-39). After completing his assessment, Ross concluded that Petitioner was aware of his surroundings and could respond to verbal communication even though he was not responding to verbal communication. (Id. at 1539). Ross then told a uniformed officer that Petitioner was conscious, aware of his surroundings, and could get an "Academy Award" for his acting performance. (Id. at 1539-40).

Meanwhile, Det. McFadden had gone outside of the residence to talk to members of Charney's family who had recently arrived. (Id. at 1678-79). As Det. McFadden re-entered the residence, Petitioner arose off the floor, reached inside of his pants, pulled out his penis, and began to point it at everyone as if he wanted to urinate on every person in the room. (Id. at 1679). In response, Det. McFadden told other officers to direct Petitioner to the bathroom. (Id.). After Petitioner was directed to the bathroom by officers, he returned to the living room area on his own. (Id.). At that time, Det. McFadden, seeing that Petitioner was alert, asked Petitioner if he would accompany officers to the Law Enforcement Center because the other members of Petitioner's family who were at the residence when officers arrived were also going to the Law Enforcement Center. (Id.). Petitioner agreed to accompany officers to the Law Enforcement Center. (Id. at 1680).

2. Officers Escort Petitioner to the Law Enforcement Center, Petitioner is Placed in an Interview Room, and Leg Shackles are Applied

When Petitioner agreed to accompany officers to the Law Enforcement Center, Det. McFadden told other officers to direct Petitioner to a marked police vehicle which was near the driveway. (Id.). Two officers escorted Petitioner to the marked police vehicle. At trial, officers testified that they escorted Petitioner to the vehicle because it had been raining and snowing, and because the hill from the police vehicle to Petitioner's mother's residence was slippery. (Id. at 130; 181). Petitioner was frisked, secured in the back seat of the police vehicle, and driven to the Law Enforcement Center with two officers in the vehicle with him and no members of Petitioner's family present. (Id. at 195; 204; 210; 1529-31; 1680). Petitioner thereafter had no contact with any family members until after he was interrogated for the next several hours at the Law Enforcement Center.

At 3:45 PM, Detective McFadden and Petitioner left Petitioner's mother's house in different vehicles. (Id. at 1680). Det. McFadden arrived at the Law Enforcement Center at 3:56 PM, and Petitioner arrived at 3:57 PM. (Id.). Petitioner was escorted through the entrance that was used for prisoners and detainees. (Id. at 192-93). Department policy required that arrestees be taken to interrogation rooms and shackled to the floor. (Id. at 197). Petitioner was initially taken to a room without leg shackles. Moments later, however, the officers who had escorted Petitioner into the Law Enforcement Center advised detectives of the lack of shackles in the room, and were told to move Petitioner to another room that had shackles. (Id. at 206). The officers escorted Petitioner to an interview room and shackled him to the floor with leg shackles. The officers then slid an interview table in front of Petitioner, obscuring Petitioner's legs and shackles from the view of anyone entering the interview room. (Pet.'s Ex. L, 4:04: Video of Interrogations).[2] Petitioner was left shackled to the floor at 4:03 PM with an officer standing at the door, and Petitioner remained undisturbed in the interview room until Det. McFadden entered at 4:37 PM.

3. Detective McFadden Comes to the Interview Room to Interview Petitioner

When he arrived at the Law Enforcement Center, Det. McFadden first met with investigators assigned to investigate Charney's homicide, and at 4:37 PM he went to interview Petitioner. (Trial Tr. at 1680-82). When Det. McFadden entered the interview room, Petitioner was sitting at the interview table with his head down, resting on his arms, which were crossed on the interview table. (Pet.'s Ex. L, 4:38). When Det. McFadden attempted to get Petitioner's attention and asked Petitioner to sit up, Petitioner was unresponsive until he began shaking his head in the negative while it was lying on his arms, which remained crossed on the interview table. (Pet.'s Ex. L, 4:39-4:40). By the time Det. McFadden came into the room, Petitioner had been shackled to the floor for thirty-five minutes. McFadden asked Petitioner to consent to gunshot residue testing at 4:40. Det. McFadden left the room at 4:41 and returned at 4:46 with Detective Keith Martin ("Det. Martin") and a consent form for gunshot residue testing. (Pet.'s Ex. L, 4:46). The videotaped interrogation shows that while Petitioner was shackled to the floor, Det. McFadden repeatedly told Petitioner that he had to talk to him:

"We need to do a couple of things, but we need to talk to you." (4:40:00)
"Gary, you have to respond to me." (4:40:07)
"You have to open your mouth, Gary." (4:40:12)
"Gary, You've got to talk to me. You can't go out. You can't sit here all day." (4:40:40)
"You have to talk to me." (4:40:47)
"You have to talk to me. You have to respond to me." (4:40:59)
"You got to talk to me, Gary." (4:41:08)
"Look at me. Look at me. You have to talk with me." (4:41:24)
"You have to talk to me, Gary." (4:41:30)
"How bout if I give you a paper and then you'll talk to me." (4:41:36)
"You've got to talk to me. Can't just shrug your shoulders and go on and on." (4:41:42)
"You've got to talk to me." (4:41:58)
"Gary, you've got to talk to me." (4:42:07)
"Give me a yes or no. Yes or no, Gary?" (4:42:11)
"We have to do a couple things. I have to talk to you. You have to talk to me, Gary."
(4:47:31)
"You have to talk to me." (4:48:08)
"You can't bob your head out on the stand. What do you mean?" (4:49:30)
"Gary, we got to get through this. No matter how much you want it to go away, it's not.
We're here. You're prolonging it. We got to get through it. We got to get through it."
(4:49:40)
"I have to have a word, Gary." (4:50:15)
"Gary, we got to get through this. You don't want to sit here all day and I don't want to
sit here all day." (4:50:48).

Det. Martin then told Petitioner that there were family members, including babies, down at the station who were waiting on him and would eventually run out of diapers and formula:

Your family is down here and they're waiting on you. And the longer you drag it out the longer they're gonna have to wait on you. They got the babies. And they got diapers and formula and stuff but sooner or later that stuff's gonna run out. And they want to get back home and I'm sure you do, too, so let's get through this. They're waiting on you...The longer we sit and take for this, the ...

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