People v. Sellers.

2022 COA 102. No. 19CA2033. Felony Murder—Sentencing—Presumption of Concurrence—Life Imprisonment Without the Possibility of Parole—Cruel and Unusual Punishment—Proportionality Review—Per Se Grave or Serious Offenses.

September 8, 2022

Sellers and several companions robbed two drug dealers at gunpoint. One of Sellers’s companions shot and killed the second victim. A detective arrested Sellers and read him his Miranda rights, and Sellers agreed to speak with him. During the interview, which was video-recorded, Sellers gave his version of the events, answered the detective’s questions, and drew pictures of scenes from the robberies. Sellers moved pretrial to suppress the video-recorded interview. The trial court denied the motion, and the video-recorded interview was admitted. A jury convicted Sellers of five charges related to the victim who was killed: felony murder, three counts of attempted aggravated robbery, and conspiracy to commit aggravated robbery. The jury also convicted Sellers of aggravated robbery related to the other victim. At the sentencing hearing, the trial court merged the five convictions related to the victim who was killed, entering a single conviction for felony murder, and sentenced Sellers to life without the possibility of parole. The trial court did not state during the sentencing hearing that the sentence for aggravated robbery would be consecutive to the sentence for felony murder, but the mittimus provided that the aggravated robbery sentence would run consecutively to the felony murder sentence.

On appeal, Sellers argued that the trial court erred by denying his motion to suppress. Under the totality of the circumstances, Sellers’s waiver of his Miranda rights and his subsequent statements were voluntary, knowing, and intelligent. Thus, the trial court did not err.

Sellers also contended that the prosecutor committed misconduct during opening and closing statements by improperly expressing a personal opinion about Sellers’s guilt and vouching for the credibility of witnesses. The prosecutor stated in opening and closing statements that Sellers “knew what he was doing.” In closing argument, she said that “the defendant[] is absolutely guilty of all the crimes we’ve charged” him with. The phrase in the prosecutor’s opening statement was used to preview the evidence that she planned to introduce at trial and drew the reasonable inference from that evidence that Sellers was a knowing participant in the offenses. In the closing statement, the prosecutor was prefacing her argument that the evidence contradicted Sellers’s abandonment theory and was emphasizing the lack of evidence to support such a theory. Further, during rebuttal, while the prosecutor’s reference to the prosecution’s “belief” was unnecessary and inartful, given the context, the prosecutor was simply asserting that the evidence of Sellers’s guilt was sufficient for the jury to reach the question of whether he possessed a deadly weapon. In addition, the prosecutor did not improperly vouch for the credibility of witnesses in her opening statement because her statement did not express the prosecutor’s personal opinion that the witness would testify truthfully and did not suggest that the prosecutor appeared to possess information that was unavailable to the jury. Accordingly, there was no prosecutorial misconduct.

Sellers also argued that imposing a consecutive sentence for his aggravated robbery conviction constituted double jeopardy because, although the court did not address whether the sentence would be concurrent or consecutive to the felony murder sentence in its oral remarks, the mittimus later provided that it was consecutive. When a court imposes a sentence on multiple counts contemporaneously but is silent or ambiguous about whether the sentences are concurrent or consecutive, the sentences are presumed to be concurrent. Applying the presumption of concurrency, the court’s oral pronouncement imposed concurrent sentences. Accordingly, the trial court impermissibly increased Sellers’s sentence when, after Sellers had already begun serving his sentence, it issued the mittimus providing that Sellers’s aggravated robbery sentence would run consecutively to his felony murder sentence.

Sellers also argued that a sentence of life without the possibility of parole for felony murder is categorically unconstitutional. Alternatively, he argued that the case should be remanded to the trial court to conduct a proportionality review. However, neither the US Supreme Court nor any other appellate court has applied the categorical analysis to cases that do not involve either the death penalty or juvenile offenders, so the Court of Appeals declined to do so. It then determined that felony murder is a per se grave or serious offense because it necessarily involves committing a violent predicate felony that results in the death of a person. It conducted an abbreviated proportionality review and concluded that the sentence is not unconstitutionally disproportionate despite subsequent legislative amendments to the sentencing range for felony murder.

The convictions and the sentence for felony murder were affirmed, the consecutive sentence for aggravated robbery was vacated, and the case was remanded to the trial court with instructions to impose a concurrent sentence.