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State v. McNeill

Supreme Court of North Carolina

June 8, 2018


          Heard in the Supreme Court on 9 May 2017 in session in the Old Chowan County Courthouse (1767) in the Town of Edenton pursuant to N.C. G.S. § 7A-10(a).

          Appeal as of right pursuant to N.C. G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Judge James Floyd Ammons Jr. on 29 May 2013 in Superior Court, Cumberland County, upon a jury verdict finding defendant guilty of first-degree murder.

          Joshua H. Stein, Attorney General, by Anne M. Middleton and Derrick C. Mertz, Special Deputy Attorneys General, for the State.

          Glenn Gerding, Appellate Defender, and Andrew DeSimone, Benjamin Dowling-Sendor, and Daniel Shatz, Assistant Appellate Defenders, for defendant-appellant.

          HUDSON, Justice.

         Defendant Mario Andrette McNeill appeals his conviction and sentence of death for the first-degree murder of Shaniya Davis. Defendant was found guilty of first-degree murder based on malice, premeditation, and deliberation, and under the felony murder rule, with the underlying felonies being sex offense of a child and kidnapping. Defendant was also convicted of related charges of sexual offense of a child by an adult offender, taking indecent liberties with a child, first-degree kidnapping, human trafficking, and subjecting the victim to sexual servitude. We find no error in defendant's trial or sentencing, and we further determine that defendant's sentence of death is not disproportionate to his crimes.


         The evidence at trial tended to show that in September 2009, Shaniya Davis was five years old and, along with her mother, Antoinette Davis, and her seven-year-old brother, CD., lived in the trailer of Antoinette's sister, Brenda Davis, located in Sleepy Hollow Trailer Park (Sleepy Hollow) in Fayetteville, North Carolina. Brenda had previously "been seeing" defendant, who also went by the nickname "Mano, "[1] and he had given her the deposit to move into the Sleepy Hollow trailer. Because defendant spent time at the trailer, he knew Antoinette and had been in the presence of Shaniya and CD. before, and he also knew how to get into the trailer, even when the door was locked. At the time of the events at issue, Brenda was "seeing" Jeroy Smith, the father of her children. Brenda, Jeroy, and their children stayed in the back bedroom, while Antoinette and her children stayed in the front room of the trailer. Defendant lived with April Autry, the mother of his eighteen-month-old daughter, on Washington Drive in Fayetteville.

         On the evening of 9 November and continuing into the early morning hours of 10 November 2009, after ingesting cocaine and "a couple shots of liquor, " defendant began "text[ing] all the females in [his] phone." He tried to text Brenda, but her phone was turned off. Another woman, Taisa McClain, who also lived in Sleepy Hollow, began exchanging text messages with defendant and agreed to invite him over; however, by the time defendant arrived at Sleepy Hollow at 2:52 a.m. on 10 November, Taisa had fallen asleep and did not answer defendant's texts. At 3:06 a.m., defendant texted "Goodnight" to Taisa and then at 3:07 a.m., defendant again attempted to text Brenda.

         At around 5:30 a.m., Brenda woke up because she thought she heard the bedroom door open, and she mentioned this to Jeroy. Brenda and Jeroy went back to sleep but were reawakened at around 6:00 a.m. by Antoinette, who came into the room and asked if they had seen Shaniya. When they responded in the negative, Antoinette told them she was going outside to search for Shaniya. While Antoinette was outside, C.D. told Brenda and Jeroy that defendant had been there the previous night. Jeroy asked C.D. if he was sure about this, and C.D. responded, "yeah." Brenda texted and called defendant, but he did not answer his telephone. Jeroy then called April Autry, who told him that defendant was not with her.

         Antoinette returned to the trailer and reported that she had knocked on doors in Sleepy Hollow but that no one had seen Shaniya. Brenda told Antoinette to call the police, but Antoinette was hesitant to do so. Brenda and Jeroy went outside and noticed that the stairs and railings of the trailer contained feces that had not been there the night before. There was also what appeared to be illegible yellow writing scribbled within the feces on a railing.

         Shortly after 6:00 a.m. that same morning, defendant arrived at the Comfort Inn & Suites (Comfort Suites) in Sanford where he entered the hotel alone, provided identification, and checked into Room 201 under his own name. There was video footage of the transaction because cameras operated continually throughout the hotel.[2] Defendant told the front desk clerk, Jacqueline Lee, that he was traveling with his daughter to take her to her mother in Virginia. Video footage from hotel security cameras showed that after checking in, defendant returned to his vehicle in the back of the parking lot at approximately 6:17 a.m, where he remained for several minutes, before coming back into the hotel carrying a child covered up with a blue blanket. Lee observed defendant carrying the child on the video feed and noticed the texture of her hair, which Lee recalled when she saw an Amber Alert that was issued for Shaniya. Additionally, Seth Chambers, who was staying at the hotel during a business trip, passed defendant in the hallway near Room 201 at 6:24 a.m. and observed defendant carrying a child.

         At the hotel's morning shift change, Regina Bacani replaced Lee at the front desk. During the shift change, defendant came to the breakfast area alone, got a banana, some juice, and a muffin, and took them back to his room. Lee pointed defendant out to Bacani and told her about the recent check-in. Hotel cameras showed defendant walking toward the breakfast area at 6:36 a.m. and returning down the hall and into his room with food and drink in his hands.

         Back at Sleepy Hollow, Antoinette called the police at 6:52 a.m. at the urging of Brenda. About ten minutes after Antoinette's telephone call, the police arrived, began searching for Shaniya with canines, and started interviewing people. Fayetteville Police Officer Elizabeth Culver observed a substance that was later determined to be feces on both railings of the front porch. The substance was smooth, like something had been poured on it. Antoinette Davis had a cooking pot in her hand when Officer Culver arrived, and someone said Antoinette had poured water on the railings, so Officer Culver asked her not to do that. In the trash can of unit 1119, police found a blanket that Antoinette Davis identified as hers and which Jeroy Smith recognized as having been in the living room of the trailer recently. The blanket was a thick child's comforter-type blanket, and it had feces on it. Jennifer Slish, a forensic technician for the Fayetteville Police Department at that time, took the blanket into evidence to be processed for fluids, fibers, and hairs.

         Officer Culver spoke with Antoinette, Brenda, Jeroy, and C.D. at the scene. C.D. seemed very distracted and would look at his aunt before responding. C.D. said he remembered Shaniya coming to bed but did not remember her leaving the bedroom. At trial, C.D. ultimately testified that he had seen defendant at the trailer that morning. Because Antoinette and Brenda were consistently looking at their phones and texting, Officer Culver had difficulty getting them to focus on the questions being asked, so her Lieutenant agreed to take them downtown to be interviewed. Officer Culver and her partner, Daniel Suggs, went to the main office of the trailer park to view the security video so as to look for a child roaming around the trailer park or for vehicles coming into the area.

         At approximately 7:34 a.m., the video cameras at the Comfort Suites showed defendant leaving Room 201 and going to the elevator with a child later identified as Shaniya. At 7:35 a.m., the video shows defendant exiting the side door of the hotel and walking down the sidewalk still carrying Shaniya. Matthew Argyle, the hotel's maintenance worker at the time, appeared on the video one minute later. Argyle later testified that he was outside the side door picking up cigarette butts and trash when he saw defendant come out with a five- or six-year-old female child on his shoulder. Defendant had her covered, and Argyle thought she was asleep. When Argyle said hello, defendant made eye contact with him before looking away without saying anything in response and continuing walking toward the parking lot. Argyle "noticed something was amiss, " and he thus tried to observe defendant without making it obvious that he was doing so. Defendant put the child in the right rear passenger side of his car, got into the driver's seat, and began smoking a cigarette or cigar. Argyle continued to watch defendant while acting like he was doing busy work, because he just felt something was amiss. Defendant then drove to the pavilion at the front entrance of the hotel, extinguished his smoking material, and entered the hotel.

         Defendant approached the front desk and asked Bacani for his security deposit, stating that he had to get back on the road to drive his daughter to Virginia to meet her mother. Security cameras show Bacani giving defendant the cash receipt to sign and returning the deposit. The housekeeper who later cleaned Room 201 brought Bacani one or two small, clear, open plastic packets with white residue that she had found in the room, which Bacani believed to be cocaine.

         Meanwhile, Argyle watched defendant leave the hotel entrance, get back in his car, drive away, and turn left onto the main road. Argyle did not act on his feeling that something was wrong until the following day when hotel staff saw an Amber Alert and called law enforcement. The hotel security cameras show defendant leaving the hotel's front entrance and getting into his car at 7:40 a.m., after which the car turned left towards Highway 87.

         Telephone records indicate that at approximately 7:49 a.m., defendant sent a text saying "Hey" to Brenda Davis, who was at the police station at this time and had texted "Hey" to defendant at 6:53 a.m. after learning from C.D. that defendant had been in the trailer the previous night. At approximately 8:22 a.m., cell phone tower pings showed defendant's phone to be near the intersection of Highway 87, Highway 24, and Highway 27 in an area known as the Johnsonville and Barbeque area of Highway 87. At approximately 8:33 a.m., Brenda sent a text message to defendant stating, "U been 2 my house." At 8:35 a.m., defendant responded to Brenda, "No [wh]y." Brenda sent a return message at 8:37 a.m. stating, "U lyin, " to which defendant responded, "No can i come though." At 8:39 a.m., Brenda responded, "Hell no." At 8:40 a.m., defendant sent a message to Brenda stating, "Dam its [sic] like that." At 8:41 a.m., defendant sent a message to Brenda adding, "Him there." At 8:47 a.m., Brenda sent a message to defendant telling him, "Dont text me no mo [sic]." At 8:50 a.m., defendant sent a message to Brenda saying, "Sure what ever." At 9:19 a.m., defendant sent a message to Brenda inquiring, "[Wh]y [your] baby dad call my baby ma askin 4 me." At 9:48 a.m., defendant sent a final message to Brenda asking, "What da hell is going on." Brenda testified that she did not tell law enforcement she was text messaging defendant during the same time she was at the station because she "didn't want to assume" anything at that point. For the same reason, she did not immediately tell police what CD. had said about seeing defendant in the trailer.

         Bacani finished working at the Comfort Suites at 3:00 p.m. and reported back for the 7:00 a.m. shift change the next day, 11 November 2009. Bacani and Lee then noticed an Amber Alert on the hotel's computer screen. Lee thought the picture shown on the screen was that of the same child she had observed with defendant the previous morning, and accordingly, she called the Amber Alert hot line. Slish, the forensic technician, responded to the call and processed Room 201 for evidence. The hotel manager advised Slish that the bedding had not been changed but that the trash had been taken out and a towel had been removed before staff became aware of the situation. Two comforters from the beds in Room 201 were among the evidence Slish collected.

         Charles Kimble, who was at that time a Captain in the Fayetteville Police Department and in charge of its investigation bureau, was responsible for the logistics of trying to find Shaniya. Based on the video from the hotel, police believed that defendant had been with Shaniya and that she was still alive. After obtaining defendant's cell phone number from his mother, police gave the number to FBI Special Agent Frank Brostrom, who began an analysis of defendant's phone.

         Brostrom testified that the National Center for Missing and Exploited Children had already notified the FBI about the case. According to Brostrom, when the FBI receives a notification of a missing child, agents immediately contact local law enforcement to offer assistance. Brostrom contacted Sergeant Chris Courseon of the Fayetteville Police Department, who quickly invited Brostrom to come and help with the search for Shaniya. Brostrom arrived at Sleepy Hollow on the afternoon of 10 November.

         In exigent circumstances, including situations when young children are missing, the FBI can make a showing of imminent danger of serious bodily injury or death and thereby obtain from communications carriers information such as telephone data, "GPS, toll records, " and cell tower records. Brostrom had already telefaxed exigent circumstance requests to telephone companies to obtain information on phone numbers belonging to Brenda Davis, Antoinette Davis, and an associate of theirs, and on 12 November, Brostrom made a request for information regarding defendant's phone number. Brostrom quickly obtained information associated with defendant's cell phone including call details, cell phone tower locations, and text messaging, with longitudes and latitudes for the cell towers for which the phone number would have pinged.

         Defendant's cell phone data were analyzed by Special Agent Michael Sutton of the FBI's Cellular Analysis Survey Team (CAST). CAST assesses cellular telephone records and applies the cell tower and sectors utilized by a particular phone to map its location. When Sutton received the electronic information from defendant's cell phone, he performed an initial analysis, created some rough draft maps, and provided Brostrom an initial search area in the Highway 87 area along Highway 27. Following the FBI's recommendation, police began searching for Shaniya in the area around Highway 87 from Spring Lake toward Sanford. Having received offers of assistance from volunteers and different law enforcement agencies, investigators mobilized a huge search and rescue effort.

         After the hotel video showing defendant with a child believed to be Shaniya came to light, Brenda Davis and Jeroy Smith told police that C.D. had seen defendant at the trailer the night Shaniya disappeared. Brenda had also seen defendant try to talk to Antoinette at their aunt's house, to which Antoinette responded, "I don't have shit to say to you. I just want to know where my mother fucking baby's at." Defendant said, "All right, " and jumped in his car and sped away. Brenda began to think Antoinette was lying about what she knew, and Brenda and Antoinette argued and did not speak after this. In the evening hours of 12 November, Brenda talked to detectives again, told them about the text messages with defendant, and ultimately gave them her phone to take photos of these texts.

         That same day, police found defendant, and he agreed to come to the station to speak with them. Police also located defendant's Mitsubishi Gallant, which was backed into a space at the Mount Sinai apartments, away from his residence on Washington Drive. Police did an exigent circumstances search of the vehicle's trunk and then had the car towed to the police department. The car was processed for forensic evidence, which included taking soil samples from the wheel wells and taking the brake and gas pedal covers for substance analysis.

         Beginning at around 9:30 p.m. on the evening of 12 November, several law enforcement officers interviewed defendant in an effort to find Shaniya. Although Shaniya had now been missing for two days, officers were still hopeful of finding her alive. The officers did not handcuff defendant or place him under arrest, and they specifically informed him that the door to the interview room was unlocked and that he was free to leave the room. Defendant also had his cell phone, on which he continued to receive messages and which he used during breaks in the interview. Defendant admitted he was at Sleepy Hollow just after midnight on 10 November driving around in the black Mitsubishi, but at first he denied going to Brenda Davis's trailer, denied seeing Shaniya or even knowing her, denied having her in the vehicle, and denied leaving the city limits or being in Sanford at a hotel. When police showed defendant a photograph of himself at the hotel, defendant initially denied it was he. When confronted with the information that the same person signed in to the hotel as Mario McNeill showing defendant's identification and listing defendant's home address, defendant suggested that maybe he had lost his identification. Defendant then admitted he had been at the hotel with Shaniya.

         About fifty-four minutes into the interview, defendant began telling a story about receiving a text message, which he said he thought came from Brenda Davis's phone, telling him to come to Sleepy Hollow and pick Shaniya up on the porch. Defendant said he got Shaniya and took her to the hotel room, where he ingested cocaine. According to defendant, while he was at the hotel, he got a call or text message from some unknown people to bring Shaniya to a dry cleaning establishment at the corner of Country Club Drive and Ramsey Street. Defendant stated that he delivered Shaniya to these unnamed people and that they were driving a gray Nissan Maxima.

         Agent Brostrom testified that the focus of the interview changed when defendant suddenly stated he was waiting to get a call "to come to kill her." The interviewing officers tried to get defendant to expand on this statement, but he would not. The messages on defendant's phone exchanges with Brenda did not pertain to picking up someone waiting on the porch, as defendant claimed during the interview. There were no calls or text messages to defendant's phone from unknown persons, as claimed by defendant; the only messages during this time period were between defendant's and Brenda's phones. At the end of the interview, defendant was arrested for kidnapping Shaniya.

         When police later viewed the videotape of the interview, they saw that when they left defendant alone in the interview room during a break, defendant made the sign of the cross, took out a key, got down on the floor, put the key in a wall electrical socket, and appeared to receive a jolt. Defendant then took off his shoes and put the key in the electrical socket again.

         Shaniya had been reported missing on 10 November, and a massive search was continuing along Highway 87 but had not yet located Shaniya. Kimble, the head investigator for the Fayetteville Police Department, later testified in a pretrial hearing that on the morning of 13 November, he met with then-District Attorney Ed Grannis about several cases, including this one. The District Attorney pulled Kimble aside and told Kimble that Allen Rogers, a Fayetteville defense attorney, might have some information that could help them in the case and that Rogers would be calling him. Kimble did not know how Grannis knew Rogers might be able to assist. Rogers had accompanied defendant at his first appearance on Friday morning following his arrest on kidnapping charges, and it was Kimble's understanding that Rogers was defendant's attorney in this matter.

         The following day, Kimble received a telephone call from attorney Coy Brewer. Brewer said the information Kimble needed was to look for green porta-potties on Highway 87. Based on the information he received earlier that Allen Rogers would be calling, Kimble assumed after receiving the call from Coy Brewer, that Brewer and Rogers were working together on the case.

         Police did look for green porta-potties along Highway 87 and saw numerous porta-potties along the road. Kimble told District Attorney Grannis that the information he had received from Brewer was vague, and Grannis suggested he talk to Rogers. On Sunday, 15 November, Kimble called Allen Rogers and told him that the information he had received from Brewer about looking for green porta-potties along Highway 87 was somewhat vague. Rogers said he was traveling and would talk to his client when he returned to town. Rogers later followed up with Kimble and said police needed "to look for green porta-potties in an area where they kill deer" on Highway 87 between Spring Lake and Sanford. According to Kimble, Rogers stated in a subsequent phone call, "let me talk to my guy" and later called back to say they need to look in an area where hunters field dress deer after they kill them. Kimble called Rogers once more to see if there were additional details, and Rogers said "that's all my guy remembers."[3]

         Searchers did not locate Shaniya that day, and the search resumed the following morning, 16 November 2009. A Sanford company training canine officers from the Virgin Islands volunteered to assist in the search. Around 1:00 p.m. that day, one of the officers from the Virgin Islands and his training dog found Shaniya's body lying partially under a log in an area with deer carcasses near the intersection of Highway 87 and Walker Road. Police collected forensic evidence at the scene. On 19 November 2009, defendant was charged with first-degree murder and first-degree rape of the victim. On 5 July 2011, a Cumberland County Grand Jury indicted defendant for first-degree murder, rape of a child by an adult offender, sexual offense of a child by an adult offender, felony child abuse inflicting serious bodily injury, felony child abuse by prostitution, first-degree kidnapping, human trafficking (minor victim), sexual servitude (minor victim), and taking indecent liberties with a child.[4]

         Defendant filed various pre-trial motions, several of which are relevant to his contentions on appeal. Before the indictments, on 9 June 2011, defendant filed a Motion To Prohibit The State from Seeking the Death Penalty Pursuant to the North Carolina Racial Justice Act, and on 5 June 2012, defendant filed a supplement to the motion. A Rule 24 conference was held on 5 October 2011, during which the State gave notice of its intent to seek the death penalty. Defendant did not raise his claim under the Racial Justice Act at the Rule 24 conference. The trial court conducted a hearing on numerous pre-trial motions on 11 January 2013, at which time the trial court denied defendant's motions under the Racial Justice Act.

         On 9 January 2013, defendant filed a motion to suppress all statements he made to law enforcement officers during his interview on 12 November 2009. The motion was heard on 2 April 2013, and on 4 April 2013, the trial court signed an order denying the motion in part and granting it in part, in which the court suppressed defendant's statements made during a one-minute period near the end of the interview, when Brostrom "answered the Defendant's question by telling the Defendant that he had been free to leave until he had confessed to kidnapping" but had not yet advised defendant of his Miranda rights.

         The next day, 5 April, defendant filed a document captioned in part a Motion to Require Specific Performance or, Alternatively, to Suppress Statements and Evidence.[5] The motion alleged that, in exchange for information regarding the location of Shaniya's body as conveyed through defendant's initial attorneys, Allen Rogers and Coy Brewer, the State had agreed not to seek the death penalty. Defendant sought "specific performance" of the purported agreement, suggesting that the trial court should declare the case noncapital or, in the alternative, suppress the evidence that defendant's attorneys had disclosed the location of Shaniya's body as well as all evidence obtained from discovery of the body because defendant had received ineffective assistance of counsel. At the hearing on the motion on 8 April 2013, defendant presented documentary evidence, but offered no testimony. The trial court orally denied defendant's motion at the hearing and entered its written order on 17 April 2013. The trial court found that no agreements existed between the State of North Carolina and defendant in exchange for his information regarding the location of Shaniya and that his attorneys were authorized by him to provide the information to law enforcement. Further, the trial court ruled that the disclosure did not occur at a " 'critical stage' of the proceeding, " but that even if such had been the case, defendant did not receive ineffective assistance of counsel.

         Additionally, when the trial court became aware at the 8 April hearing that the State was offering defendant a plea of guilty to first-degree murder with a sentence of life imprisonment without parole in lieu of a possible death sentence, the trial court inquired of defendant's counsel if defendant and they were aware of the offer and whether they needed additional time to consider it. Defendant's counsel informed the trial court that defendant had elected to proceed to trial. The trial court required the State to hold the offer open for at least one more day to give defendant and his counsel more time to consider the offer. On 9 April 2013, defendant, through his counsel, rejected the State's offer of life imprisonment and elected to proceed to trial.

         Also on 5 April 2013, the State filed a motion in limine asking the court to determine the admissibility, under Rule of Evidence 801(d), of statements made by defendant through his counsel to law enforcement concerning the location of the body of Shaniya Davis. When this motion came on for hearing on 26 and 29 April 2013, defendant made oral motions arguing, inter alia, that evidence regarding the disclosure of Shaniya's location was inadmissible on grounds of: (1) ineffective assistance of counsel; (2) attorney-client privilege, the Sixth Amendment to the United State Constitution, and Article I, Section 23 of the North Carolina Constitution; (3) N.C. G.S. § 8C-1, Rule 801(d); and (4) the Due Process and Law of the Land Clauses of the Federal and North Carolina constitutions. The trial court heard testimony from Kimble, Rogers, and Brewer;[6] defendant again did not testify at this hearing. The trial court entered a written order, which included findings and conclusions and also adopted and incorporated by reference the findings and conclusions set forth in its 17 April 2013 order, concluding that defendant's right to effective assistance of counsel had not been violated and that the attorneys' statements to law enforcement regarding Shaniya's location were admissible through Captain Kimble as an exception to the hearsay rule under N.C. G.S. § 8C-1, Rule 801(d) ("Exception for Admissions by a Party-Opponent").

         Defendant was tried before Judge James Floyd Ammons Jr. at the 8 April 2013 criminal session of the Superior Court in Cumberland County. Before trial, the State dismissed the two charges of felony child abuse. At trial, defendant stipulated to four items: (1) that he was at Sleepy Hollow; (2) that he left the trailer park with Shaniya Davis; (3) that he was at the Comfort Suites with Shaniya Davis; and (4) that he left the Comfort Suites with Shaniya Davis. In addition to the evidence previously discussed, the State presented considerable forensic evidence at trial.

         Thomas Clark, M.D., Deputy Chief Medical Examiner for the State of North Carolina until his retirement in 2010, conducted the autopsy on Shaniya Davis on 17 November 2009 and testified at trial as an expert in the field of forensic pathology. The autopsy identified a small bruise on the left side of Shaniya's face, injuries to her vaginal area, and two abrasions on her upper thighs. Dr. Clark testified that abrasions are a scraping type of injury in which part or all of the outer layer of skin is removed by a blunt object, and that two linear or line-like abrasions at the upper part of Shaniya's inner thighs matched the band of the underwear Shaniya was wearing. Dr. Clark noted injuries consistent with sexual assault, specifically, the absence of a hymen and the presence of a ring of abrasion or scraping injury surrounding the entrance to the vagina indicating that a blunt object had penetrated the vagina and left the ring of injury. In addition to preparing a sexual assault kit, Dr. Clark collected several hairs that were found during the external examination and preserved the sheet on which Shaniya was initially examined. Shaniya's lungs showed edema, chronic bronchitis, and focal intra-alveolar hemorrhage. Edema is caused by an imbalance of pressure in the body that causes fluid from capillaries to enter the air spaces in the lung. Dr. Clark concluded that the most likely cause of death was external airway obstruction or asphyxiation.

         Special Agent Jody West, a supervisor in the forensic biology section of the State Crime Lab, testified as an expert in the field of forensic serology and forensic DNA analysis. Special Agent West examined the evidence in this case, including performing a Kastle-Meyer or phenolphthalein test, which is a test used to indicate whether blood is present on an item. This chemical analysis indicated the presence of blood on the vaginal swabs, rectal swabs, oral swabs, and the crotch area of Shaniya's panties. Samples from the small blanket recovered from the trash can gave the chemical indication for blood, as did the inside bottom rear portion of the shirt Shaniya was wearing. The white sheet from the medical examiner's office also gave a chemical indication for the presence of blood. Examination of the items failed to produce a chemical indication for the presence of semen, spermatazoa, or human saliva.

         DNA analysis on samples taken from the rear seat of defendant's car was consistent with multiple contributors; defendant could not be excluded as a contributor, and no conclusion could be rendered regarding the contribution of Shaniya Davis to this mixture. Special Agent West transferred some items to Jennifer Remy of the trace evidence section at the Crime Lab for DNA hair analysis and to Kristin Hughes of the forensic biology section to perform Y-STR analysis-a type of DNA analysis focusing on the Y chromosome. Analysis of hairs collected in the case ultimately revealed a pubic hair having the same mitochondrial DNA as defendant's pubic hair found on the hotel comforter, and another pubic hair with the same mitochondrial DNA as defendant's pubic hair found on the small blanket found in the trash can of the mobile home park. Defendant could not be excluded as the source of these two hairs. Two head hairs found on the small blanket located in the trash can of the mobile home park had the same mitochondrial DNA sequence as Shaniya Davis's head hair; therefore, Shaniya could not be excluded as the source of those hairs. Three hairs recovered from Shaniya's right hand by the medical examiner were consistent with Shaniya's own head hair and were not sent for further testing. The Y-STR analysis on the vaginal swabs, the rectal swabs, and the oral swabs revealed no male DNA; Special Agent Hughes testified that this result was not unexpected because DNA begins to degrade or break down over time and that beyond a seventy-two hour window, it becomes more and more likely that investigators will not be able to obtain any DNA profile.

         Heather Hanna, a geologist with the North Carolina Geological Survey, testified as an expert in forensic geochemistry and forensic geology. Hanna analyzed soil samples, including those from the roadside near where the body was found, from the body recovery site, and from the gas pedal of defendant's Mitsubishi Gallant. In all three samples she found garnet, a mineral grain that was unique to two geologic units upstream from near where the body was discovered and which would not naturally be found in Fayetteville. Hanna concluded that it was "highly unlikely" that the soil from those three samples did not come from the same source.

         Hanna also found a tiny metal fiber in the soil sample taken from the shoulder of the road near the body recovery site and another metal fiber in the soil collected from the gas pedal of defendant's car. These samples were analyzed by Roberto Garcia, an expert in materials characterization and identification who is a materials engineer at N.C. State University in the analytical instrumentation facility. Garcia testified that the measurements of the two pieces of metal were consistent with each other and that their thickness and shape suggested they came from a braided metal wire. Further, a chemical analysis using an energy dispersive spectroscopy (an EDS detector) indicated that the two samples also were chemically consistent. Garcia's conclusion was that the metallic fiber from the gas pedal of defendant's car and the metallic fiber from the soil sample from the body recovery site were consistent with each other and consistent with having the same source.

         Following Special Agent Sutton's initial analysis of defendant's cell phone activity, which led to his recommendation to law enforcement to search in the Highway 87 area along Highway 27, he later conducted a more extensive analysis of defendant's cell phone. Based on defendant's cell phone records, Sutton testified where defendant's phone had been at certain times on 10 November 2009: at approximately 2:33 a.m., it was in the area of Fayetteville at and around defendant's residence on Washington Drive; at approximately 2:59 a.m., 3:02 a.m., 3:05 a.m., 3:19 a.m., and 3:57 a.m., it was in the area of and around Shaniya's residence at Sleepy Hollow; at approximately 7:00 a.m., 7:32 a.m., and 7:45 a.m., it was in the Sanford area at or near the Comfort Suites; at approximately 8:22 a.m. and 8:25 a.m., it was south of Walker Road near the intersection of Highway 87, Highway 24, and Highway 27, in an area that is between the Johnsonville and Barbecue area on Highway 87 and is the area in which Shaniya's body was eventually discovered; and during a remaining block of calls beginning at approximately 9:38 a.m., the phone was back in the area of defendant's residence.

         Defendant did not present any evidence during the guilt-innocence proceeding of the trial.

         On 23 May 2013, a jury found defendant guilty of first-degree murder based on malice, premeditation, and deliberation, and under the felony murder rule, with the underlying felonies being sex offense of a child and kidnapping. The jury also found defendant guilty of all other remaining charges, except for rape of a child by an adult offender.

         The trial court then held a capital sentencing proceeding, during which the State introduced evidence that defendant had been convicted on 10 January 2003 of three counts of assault inflicting serious bodily injury. Defendant stipulated that this information was correct.

         Shaniya's father and half-sister testified as impact witnesses. Shaniya's father, Bradley Lockhart, testified that he had met Shaniya's mother at a party, had been in a brief relationship with her, and had learned that Antoinette was pregnant only shortly before Shaniya's birth on 14 June 2004. For a little less than two years after Shaniya's birth, Shaniya lived with Antoinette and her family. Mr. Lockhart had frequent contact with Shaniya and would pick her up every weekend for visits.

         Toward the end of 2006 or the beginning of 2007, Mr. Lockhart bought a fairly large house in Fayetteville, and Shaniya moved in with him and his four other children. Shaniya had frequent contact with her mother during this time. Shaniya was very close with Mr. Lockhart and the other children; she enjoyed dress-up and prancing around the house in her plastic dress-up shoes but was also a little bit of a tomboy and liked to play basketball with her little brother and ride her little scooter. Shaniya considered herself a singer and desired to join the children's choir at the church they attended.

         Shaniya moved back to be with her mother in October 2009. Even when he was out of town for work, Mr. Lockhart talked to Shaniya on the telephone four to five times a week. Mr. Lockhart testified that Shaniya's death was one of the hardest things he had experienced, that it tears him up every day, and that he still finds it hard to sleep even after three-and-a-half years. He said he suffered two collapsed lungs from the stress, finds it hard to stay focused and to function, and questions if he could have done anything different.

         Cheyenne Lockhart, Bradley Lockhart's twenty-one-year-old daughter and Shaniya's half-sister, described Shaniya as her little "mini-me" who followed her everywhere. Shaniya was bubbly and loved to talk and play jokes. She was caring and would always tell them she loved them. Shaniya's loss was very painful, and Cheyenne thinks about Shaniya every day.

         Defendant did not present additional mitigation evidence or give closing arguments in the sentencing proceeding; he understood that this decision was against the advice of counsel. The trial court determined that there was an absolute impasse between defendant and his attorneys and ordered the attorneys to acquiesce to defendant's wishes.

         On 29 May 2013, the jury returned a binding recommendation that defendant be sentenced to death for the first-degree murder. The trial court accordingly sentenced Mr. McNeill to death for first-degree murder, and to consecutive sentences of 336 to 413 months for sexual offense against a child by an adult offender, 116 to 149 months for first-degree kidnapping, 116 to 149 months for human trafficking of a minor victim, 116 to 149 months for sexual servitude of a minor victim, and 21 to 26 months for taking indecent liberties with a child. Defendant immediately filed his appeal of right to this Court.


         Ineffective Assistance of Counsel

         Defendant first argues that he received ineffective assistance of counsel from his original attorneys because they disclosed to law enforcement where to look for Shaniya. Defendant contends that even though he was asserting his innocence, his attorneys, Rogers and Brewer, made this disclosure only one day into their representation, without seeking any benefit or protection in return, without any deal in place, without receiving or consulting any formal discovery from the State, and after giving defendant erroneous advice.

         As an initial matter, we have held that ineffective assistance of counsel claims brought on direct review, as opposed to in a motion for appropriate relief, "will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001) (citations omitted), cert. denied, 535 U.S. 1114, 122 S.Ct. 2332, 153 L.Ed.2d 162 (2002). Defendants "should necessarily raise those [ineffective assistance of counsel] claims on direct appeal that are apparent from the record" and are "not required to file a separate [motion for appropriate relief] in the appellate court during the pendency of that appeal." Id. at 167, 557 S.E.2d at 525. Accordingly, "on direct appeal we must determine if . . . ineffective assistance of counsel claims have been prematurely brought, " in which event "we must 'dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent [motion for appropriate relief] proceeding.' " State v. Campbell, 359 N.C. 644, 691, 617 S.E.2d 1, 30 (2005) (second alteration in original) (quoting Fair, 354 N.C. at 167, 557 S.E.2d at 525), cert. denied, 547 U.S. 1073, 126 S.Ct. 1773, 164 L.Ed.2d 523 (2006).

         Here defendant first raised his ineffective assistance of counsel argument before trial in his Motion to Require Specific Performance or, Alternatively, to Suppress Statements and Evidence. Thus, defendant was able to present evidence and arguments during a hearing on that motion, which the trial court took into consideration in its 17 April 2013 order denying defendant's motion and ruling that defendant did not receive ineffective assistance of counsel. Additionally, in its subsequent ruling on the State's motion in limine and defendant's oral motions relating to the admissibility of evidence about the disclosure, the trial court considered further arguments and evidence, including the testimony of Captain Kimble, as well as that of defendant's original attorneys, Rogers and Brewer. Defendant reasserted his ineffective assistance of counsel argument at this hearing. In an order entered on 16 May 2013, the trial court again ruled that defendant's attorneys were not ineffective. Because the trial court was able to receive evidence and make findings on this issue before trial, we conclude that "the cold record reveals that no further investigation is required." Fair, 354 N.C. at 166, 557 S.E.2d at 524. Accordingly, we may properly address the merits of defendant's ineffective assistance of counsel claim.

         "The right to assistance of counsel is guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, Sections 19 and 23 of the Constitution of North Carolina." State v. Sneed, 284 N.C. 606, 611, 201 S.E.2d 867, 871 (1974). A defendant's right to assistance of counsel "includes the right to the effective assistance of counsel." State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247-48 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771 & n.14, 90 S.Ct. 1441, 1449 & n.14, 25 L.Ed.2d 763, 773 & n.14 (1970)).[7] A defendant challenging his conviction on the basis of ineffective assistance of counsel must establish that his counsel's conduct "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). In Strickland the United States Supreme Court set out a two-part test that a defendant must satisfy in order to meet his burden:

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 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see also Braswell, 312 N.C. at 562- 63, 324 S.E.2d at 248 ("[W]e expressly adopt the test set out in Strickland v. Washington as a uniform standard to be applied to measure ineffective assistance of counsel under the North Carolina Constitution.").

         With regard to the first Strickland prong, "[r]ather than articulating specific guidelines for appropriate attorney conduct, the Court in Strickland emphasized that '[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.' " State v. Todd, 369 N.C. 707, 711, 799 S.E.2d 834, 837-38 (2017) (second alteration in original) (quoting Strickland 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). We have stated that "[c]ounsel is given wide latitude in matters of strategy, and the burden to show that counsel's performance fell short of the required standard is a heavy one for defendant to bear." State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 123 S.Ct. 184, 154 L.Ed.2d 73 (2002); see also Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695 ("[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."). "Moreover, this Court indulges the presumption that trial counsel's representation is within the boundaries of acceptable professional conduct." Campbell, 359 N.C. at 690, 617 S.E.2d at 30 (citing State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986)). As the Court stated in Strickland:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .

466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

         With regard to the second Strickland prong, "[prejudice is established by showing 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Campbell, 359 N.C. at 690, 617 S.E.2d at 29 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Braswell, 312 N.C. at 563, 324 S.E.2d at 248 (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Campbell, 359 N.C. at 690, 617 S.E.2d at 29-30 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). "[B]oth deficient performance and prejudice are required for a successful ineffective assistance of counsel claim." Todd, 369 N.C. at 711, 799 S.E.2d at 837.

         When the trial court has made findings of fact and conclusions of law to support its ruling on a defendant's claim of ineffective assistance of counsel, "we review the trial court's order to determine 'whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.' " State v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)).[8] We review conclusions of law de novo. E.g., State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citing State v. McCollum, 334 N.C. 208, 237, 433 S.E.2d 144, 160 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.E.2d 895 (1994), judgment vacated, Nos. 83 CRS 15506-07 (Robeson Co.), 91 CRS 40727 (Cumberland Co.), 2014 WL 4345428 ( N.C. Super Ct. Robeson County Sept. 2, 2014)).

         Defendant's claim stems from the conduct of his original attorneys, Rogers and Brewer. After defendant was charged with kidnapping, he waived court appointed counsel and engaged the services of Rogers, who had previously represented defendant in 2003 and 2008. Rogers is a former JAG attorney who at that time had practiced law for twenty years, and a large part of his practice was criminal defense work. Rogers immediately associated Brewer, with whom he had a working relationship in criminal cases, to assist in the matter. Brewer is a former assistant district attorney and former district court judge. Additionally, Brewer was a superior court judge for the 12th Judicial District from 1977 until 1998, and he was the senior resident superior court judge for the 12th Judicial District from 1991 to 1998. Brewer had returned to practicing law, and since 1999 a large part of his practice was criminal defense. The trial court made findings that Rogers and Brewer were both experienced criminal defense attorneys.

         When Rogers and Brewer undertook representation of defendant on 13 November 2009, Shaniya had been missing since the morning of 10 November. A massive search had been underway since the morning of Shaniya's disappearance, and law enforcement officers, having seen a child resembling Shaniya in the hotel videos, hoped to find her still alive. Defendant had admitted to police that he had taken Shaniya from Sleepy Hollow to the Comfort Suites in Sanford, where he had been observed by hotel cameras and multiple witnesses and was the last person to be seen with Shaniya. By 12 November, multiple law enforcement agencies and volunteers were searching in the area around Highway 87 near Sanford, where defendant's cell phone data had placed him.

         Rogers had conversations with Kimble to gauge the status of the investigation, and he was aware of the evidence against defendant and defendant's admission to taking Shaniya from Sleepy Hollow to the Comfort Suites. Rogers testified that he was also aware of defendant's three felony convictions for assault in 2003, which constituted aggravating circumstances that could be used at a capital sentencing proceeding. Accordingly, when Rogers and Brewer met with defendant, "there was conversation about the search and about the consequences of the child not being found, " and they began discussing with defendant the possibility that forthcoming charges could result in a capital case. Defendant "was denying that he was involved in hurting [Shaniya] or killing her, " and Rogers asked defendant "if he had any information about the location of [Shaniya]." Defendant told Rogers and Brewer he did have information about Shaniya's location, but according to Rogers, "[defendant] didn't tell me where he got the information from." When Rogers was asked at the hearing whether there was a presumption that Shaniya was alive, he stated:

Again, didn't know -- really didn't know. As I said, [defendant] denied, you know, causing her harm, assaulting her in any way. There certainly was some concerns with the amount of time, but I can't say that we knew.

         Rogers testified that it was in this "atmosphere"-with a five-year-old child missing over several cold and rainy days, with law enforcement performing a massive search, and with defendant being the sole suspect and the last person to be seen with Shaniya-that this conversation came about.

         According to Rogers, they discussed the death penalty with defendant, and defendant "agreed that it would be in his best interests to offer information that might be helpful to the location." Rogers explained to defendant that providing this information could be helpful because such action could show cooperation and remorse, which could either help achieve a plea agreement for a life sentence or be presented as mitigating circumstances in a sentencing proceeding, and ultimately "could avert the imposition of the -- and execution of the death penalty." Accordingly, defendant agreed with Rogers and Brewer that they would recommend where to search to law enforcement without specifically stating defendant's name or that he was the source of the information. According to Rogers, he was trying to give defendant the best advice he could to help save defendant's life, and defendant understood the situation at that point and agreed with the strategy.

         Accordingly, Brewer spoke with Captain Kimble on 14 November 2009 and instructed him to "look for green porta-potties on Highway 87." Rogers then spoke with Kimble on 14 and 15 November and told him to "look for green porta-potties in an area where they kill deer . . . . on Highway 87 between Spring Lake and Sanford, " and also to "look in an area where they -- where they take the deer after they -- after they've been killed." Captain Kimble narrowed the search, and at approximately 1:00 p.m. on 16 November 2009, one of the searchers found Shaniya's body in the woods "near the area where they were field dressing deer."

         Defendant first raised his pretrial ineffective assistance of counsel argument in his 5 April 2013 Motion to Require Specific Performance or, Alternatively, to Suppress Statements and Evidence. In its 17 April 2013 order denying defendant's motion, the trial court found as fact:

2. The Court provided the Defendant the opportunity to present evidence and arguments during the hearing on his Motion, and the Defendant did so.
3. The Defendant offered into evidence without objection four (4) exhibits, Defendant's Exhibits A, B, C, and D.[9] The Court carefully examined the Defendant's exhibits.
4. When the Court provided the Defendant an opportunity to present sworn testimony, the Defendant did not do so.
. . . .
6. During Mr. Rogers' representation, the Defendant provided specific information to Mr. Rogers as to the location of Shaniya Davis' body, and the Defendant authorized Mr. Rogers to provide that specific information to law enforcement.
7. Pursuant to the Defendant's authorization, Mr. Rogers provided to law enforcement that specific information as to the location of Shaniya Davis' body.
8. The Defendant's information regarding the location of Shaniya Davis' body did not constitute an admission to a crime.
. . . .
13. Under the totality of the circumstances, Mr. Rogers did not ineffectively assist the Defendant in providing information to law enforcement concerning the location of Shaniya Davis' body without an agreement of some kind as to what would happen should the Defendant provide that information.
14. The Defendant's provision of such information to law enforcement through his attorney at that stage in the search for Shaniya Davis was objectively reasonable in that it provided the State a basis for it to consider future plea negotiations with the Defendant should the Defendant be charged with more offenses related to the missing child during which negotiations the death penalty might be eliminated from the range of possible punishments. The provision of such information was also objectively reasonable in that it provided the Defendant the opportunity to obtain the benefit of a mitigating circumstance should charges be brought against the Defendant for which the death penalty was a possible punishment.
. . . .
17. The Defendant was represented by competent counsel who afforded him effective, reasonable, and professional representation.

         From these findings, the trial court made the following conclusions, in relevant part:

3. . . . [E]ven if the exchange of information at issue in this matter occurred at a "critical stage" of the proceeding, the Defendant has not shown that his counsel's performance fell below an objective standard of reasonableness.
4. Likewise, even if the exchange of information at issue in this matter occurred at a "critical stage" of the proceeding, the Defendant has not shown that the alleged deficient performance prejudiced the defense in such a way as will deprive the defendant of a fair trial.
5. The Defendant was represented by competent counsel who afforded him effective, reasonable, and ...

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