Shelly v. State

262 So.3d 1

Leshannon Jerome SHELLY, Petitioner,

v.STATE of Florida, Respondent.

No. SC16-1195

Supreme Court of Florida.

December 13, 2018

Cathy A. Williams of Law Office of Cathy A. Williams PLLC, Cornelius, North Carolina; and Thomas J. Seider of Brannock & Humphries, Tampa, Florida, for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia A. Terenzio, Chief Assistant Attorney General, Cynthia L. Comras, Luke R. Napodano, and Donna M. Perry, Assistant Attorneys General, West Palm Beach, Florida, for Respondent

PER CURIAM.

LeShannon Jerome Shelly seeks review of the decision of the Fourth District Court of Appeal in Shelly v. State , 199 So.3d 973 (Fla. 4th DCA 2016), on the basis that it expressly and directly conflicts with the decision of this Court in Welch v. State , 992 So.2d 206 (Fla. 2008), on a question of law. The decision below references Moss v. State , 60 So.3d 540 (Fla. 4th DCA 2011), instead of Welch , even though it states that Shelly reinitiated communication after invoking his right to counsel. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTUAL AND PROCEDURAL BACKGROUND

On December 14, 2011, around 11:15 p.m., officers were called to the Orangewood Apartments in Indian River County, Florida, in response to a reported shooting. Upon arrival, officers found two victims, Shanice Smith, who was dead, and Brittany Jackson, who was still alive. The following day, Shelly appeared at the Indian River County Jail at approximately 5:00 a.m. Shelly agreed to answer questions after being taken to the interrogation room and read his Miranda¹ rights. The entire interrogation was videotaped and monitored.²

Shelly claimed he was in Boynton Beach with two friends during the time of the murder. However, Detective Kevin Heinig informed Shelly that both of his friends claimed that they were not with Shelly past 9:45 p.m.

[Detective Heinig]: Okay, um--you said you went down to South Florida?

[Shelly]: Yes sir.

[Detective Heinig]: And who was it you went with?

[Shelly]: Loudy and Ayesha Harden.

[Detective Heinig]: Who?

[Shelly]: Loudy Monplasir and Ayesha Harden.

[Detective Heinig]: Okay, I just spoke with both of them.

[Shelly]: Yes sir.

[Detective Heinig]: Okay. Loudy tells me that they picked you up at 9:30. Oh no, I'm sorry. Yes, they came to your house around 9:30, 9:40, they picked you up, they took you to This and That and you bought a couple of things, they took you back home 9:45, somewhere in that area and they haven't seen you again for the rest of the night.

[Shelly]: Man, yea right.

[Detective Heinig]: They're, they're both telling me that.

Detective Heinig then informed Shelly that he was spotted by two eyewitnesses leaving the vicinity of the murder shortly after gunshots were heard.

[Detective Heinig]: Okay. We also have a eye witness that witnessed the shooting at the park. They saw the shooter.

[Shelly]: Yea.

[Detective Heinig]: Listen. They saw the shooter shoot three times, turn around, turn back shoot two more times, and then was east through the complex.

....

[Detective Heinig]: Then I have another witness that sees you, one hundred percent sure you, they've known you for a long time--

[Shelly]: Yea.

[Detective Heinig]: --go out of Orangewood Apartments through the back of it, cross across 30th. onto 43rd. Street.

[Shelly]: Yea.

[Detective Heinig]: You were talking on your cell phone when you walked by them.

[Shelly]: I what? Talking to myself?

[Detective Heinig]: Talking on your cell phone, had your cell phone up to your ear.

[Shelly]: How is that possible when I'm on 95--

[Detective Heinig]: You're not.

[Shelly]: --at the time?

[Detective Heinig]: You're not on 95, because they're telling me that you aren't with them.

Shelly then asked Detective Heinig to call his mother so she could confirm that he was dropped off by his two friends at the Fort Pierce Greyhound bus station after coming back from Boynton Beach. Detective Heinig exited the interrogation room and Detective Chris Cassinari entered. Detective Cassinari pointed out several issues within Shelly's account of his whereabouts. Shelly then asked Detective Cassinari to call his mother so she could corroborate his alibi.

[Shelly]: ... I wasn't there. I don't know who was there. I know I wasn't there. And I know I was with Ayesha Harden. Why would I bring they name up out of the blue?

[Detective Cassinari]: I don't know why you would.

[Shelly]: I was with--call my mom. You have a phone right there, all you got to do is call ... "Mom who dropped me off at the um--Greyhound Station right beside you in the green Honda?" That's all I want to know.

Detective Cassinari then exited the interrogation room. While alone in the room, Shelly stated, "Y'all better watch the First 48.^{[3 ]} I ain't done it. I ain't do it. When the man say he ain't do it let 'em talk to his lawyer, y'all got to let 'em go man. Y'all don't have no evidence on me, dog." Detective Heinig then entered the room and played a portion of a recorded conversation that the detectives had with Shelly's grandmother. Shelly became frustrated that the detectives had spoken with his grandmother instead of his mother. Detective Heinig explained to Shelly that Shelly's mother was also on the phone during the conversation. The following exchange then occurred:

[Shelly]: --call the 501 number on the top, that's Adam. Man, the man picked me up man. Y'all asked my grandma. I ain't asked you to ask my grandma. My grandma wasn't there man. Y'all tripping dude. Y'all going all out the boundaries bro. Man, let me talk to my lawyer now, dog. Let me talk to my lawyer now man, since y'all want to play crazy. Shit, man, y'all tripping, dog. I ain't doing nothing else without my lawyer, dog. Lock me up, whatever you got to do. I ain't doing no more talking, now y'all tripping, dog. Y'all asking my grandma, a person wasn't even there. My grandma ain't had nothing to do with me picking up. My grandma don't know what's going on man.

[Detective Heinig]: Stand up.

[Shelly]: Yes, I'm gonna stand up.

[Detective Heinig]: Put your hands behind your back.

[Shelly]: Yea. Yea man. Doing no more talking without the lawyer. Y'all are asking my grandma. My grandma at the house man. I say call my mom, not my grandma. Y'all call the last number--

[Detective Heinig]: (Unintelligible) mom talked first--

[Shelly]: --(Unintelligible), man call Adam--

[Detective Heinig]: (Unintelligible.)

[Shelly]: --the number that's on there last. The man that was with my mom in Fort Pierce that picked me up from the Greyhound Station man.

[Detective Heinig]: Who we got to transport? There's no more runaround.

[Shelly]: Ain't no more runaround?

[Detective Heinig]: (Unintelligible). They're gonna have to do the header first.

[Shelly]: Y'all gonna ask my grandma. The shooter had--y'all said the shooter had on pants, I got shorts on and flip flops.

[Detective Heinig]: (Unintelligible) and have a seat.

[Shelly]: Huh?

[Detective Heinig]: Have a seat.

Detective Heinig then stood immediately outside of the interrogation room and had a brief conversation with other detectives concerning Shelly's pending transfer to jail. While Detective Heinig was speaking with the other detectives Shelly continued to make comments with regard to the phone call with his mother and grandmother.

[Shelly]: (Unintelligible.) Y'all ready?

[Detective Heinig]: No.

[Shelly]: Oh.

[Detective Heinig]: Just relax.

[Shelly]: Alright. I said, call my mom, you called my grandma.

[Detective Heinig]: (Unintelligible.)

[Shelly]: Excuse me sir. My grandma don't have anything to do with--my grandma was home.

[Detective Heinig]: I know they--when they talked to her--

[Shelly]: Man you can't talk to my grandma. My momma is aggravated right now cause she feel like y'all trying to hinder me right now. Talk to my mom, dog. Ta--sir, not dog, but sir.

[Detective Heinig]: Alright.

Detective Heinig then exited the room and Detective Tony Consalo entered. The following exchange then took place.

[Detective Consalo]: We'll be taking you next door in just a few minutes.

[Shelly]: Yes sir, I understand that. Hey sir--excuse me man, sir. All I ask can you do one thing.

[Detective Consalo]: What is that?

[Shelly]: Just call my mom, man. At--listen, sir--

[Detective Consalo]: Shannon--

[Shelly]: --I'm trying to tell you--

[Detective Consalo]: --listen, I just talked to your mom. Your mom called here.

[Shelly]: Yea.

[Detective Consalo]: Okay. I--

[Shelly]: Didn't she pick me up from Fort Pierce, sir?

[Detective Consalo]: Listen to me. Okay, you, you already--you asked for an attorney, okay you didn't want to talk anymore.

[Shelly]: Yea.

[Detective Consalo]: Do you--so I'm not gonna ask you any questions.

[Shelly]: Alright.

[Detective Consalo]: Okay? If you want me to answer that question then you need to tell me that you want to reinitiate conversation with us. Alright, cause I was the one that talked to your mom.

[Shelly]: I know my mom picked me up from Fort Pierce sir.

[Detective Consalo]: Okay.

[Shelly]: We met there dog. Sir. Not dog, but sir. I know we did. I know we did. I know we did. I know we did. We was there man. She was there sitting in a green Honda, right in the um--the Greyhound Station in Fort Pierce, that station, the Greyhound--

[Detective Consalo]: Listen--

[Shelly]: --(Unintelligible).

[Detective Consalo]: You, you know your rights, you know you might not want to say--if you want to talk to us a little bit longer then you need to say I want to talk to you a little bit longer--

[Shelly]: No.

[Detective Consalo]: --and I'll sit there and talk to you. Okay?

[Shelly]: Y'all fixing to book me for nothing. What y'all booking me ah--like for? Okay, no more talk.

[Detective Consalo]: Ah--that's up to you. You said, you, you--

[Shelly]: (Unintelligible.)

[Detective Consalo]: --(Unintelligible).

[Shelly]: No, I'm alright. I'm alright.

[Detective Consalo]: You, you said that you--

[Shelly]: No more talking.

[Detective Consalo]: --wanted your attorney, so no more talking.

[Shelly]: Yea.

[Detective Consalo]: If you want to talk I will be more than

...