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Marcia
Gayle KELLY
Classification: Murderer
Characteristics: Parricide - Murder for hire
Number of victims: 1
Date of murder: October 23, 2005
Date of arrest:
3 days after
Date of birth: December 21, 1970
Victim profile:
James Kelly (her
husband)
Method of murder:
Shooting
Location: Cushing, Nacogdoches County, Texas, USA
Status:
Sentenced to life in prison without parole in August 2006
Marcia Gayle Kelly (born December 21, 1970)
is a convicted American female murderer serving life without parole
for allegedly orchestrating the murder of her husband James. She is
incarcerated at the Mountain View Unit in Gatesville, Texas, and her
Texas Department of Criminal Justice (TDCJ) Offender number is
#1381826.
Crime
On October 23, 2005, truck driver James Kelly was
shot to death in his Cushing, Texas home. Initially, his stepdaughter
Shaina Sepulvado and her friends Dallas Christian and Colton Weir were
the prime suspects. All three were later charged in James' death. When
interviewed however, James' widow, Marcia, was implicated in his
death. Colton said that Shaina and Marcia had orchestrated the plot to
have James murdered and was promised a vehicle in return for
committing the crime. In a police statement, Marcia admitted that she
overheard some of the juveniles make a statement about wanting to kill
her husband, but did not admit to offering them anything to kill her
husband. On October 26, 2005, Marcia was charged with capital murder.
Trial
On July 31, 2006, Marcia Kelly's murder trial
began. At the trial, prosecutors presented the jury with what they
believed to be the motive. Marcia had a $100,000 life insurance policy
on James. Prosecutors also stated that Marcia and James argued on how
to punish Marcia's unruly daughter Shaina. Other testimony was
presented at the trial from men who claimed Marcia had also solicited
them to kill her husband, along with that of Colton Weir.
Marcia did not testify in her own defense, but her
daughter Shaina did take the stand to defend her mother. On the stand,
Shaina testified that she was responsible for the murder and that her
mother was not involved. Shaina had also claimed that James had been
beating and molesting her. Jurors did not believe her, and convicted
Marcia of capital murder. Since the death penalty had not been sought
against her, Marcia received an automatic sentence of life without
parole.
Aftermath
Colton Weir in November 2006, and Shaina Sepulvado
in April 2007, were each convicted of capital murder at separate
subsequent trials in Nacogdoches County, Texas. They are each serving
life without parole.
Dallas Christian pled guilty to murder and was
sentenced to 40 years in 2008.
Two other males, Billy Loftin and Gary Batchelor,
were convicted of lesser charges of tampering with evidence, in
connection with James Kelly's death.
Marcia Kelly's conviction was affirmed by the
Twelfth District Court of Appeals on January 23, 2008.
Marcia's case was profiled on Snapped on
March 20, 2011. During the program, Marcia and Shaina discuss elements
of the case.
Marcia still maintains her innocence, and is
seeking assistance in overturning her conviction.
On 25 June 2012, the US Supreme Court ruled, in a
5-4 vote, that mandatory Life Without Parole for crimes committed as
juveniles (a ruling which impacts Weir and Sepulvado) violates the 8th
amendment to the US Constitution (cruel and unusual punishment). Weir
and Sepulvado can apply for re-sentencing.
In the Court of Appeals
Twelfth Court of Appeals District Tyler, Texas
No. 12-06-00384-CR
Marcia Gayle Kelly, Appellant, v.
The State of Texas, Appelleee.
Appeal from the 420th Judicial District Court of
Nacogdoches County, Texas
MEMORANDUM OPINION
We withdraw our opinion delivered on January 23,
2008, and substitute the following opinion in its place.
Marcia Gayle Kelly appeals her conviction for
capital murder. In three issues, she argues that the trial court
erred when it allowed her statement to the police to be admitted, that
the trial court should have moved the trial because of pretrial
publicity, and that the trial court should have granted her motion for
a new trial. We affirm.
Background
Because Appellant
does not contest the sufficiency of the evidence, we will briefly
state the facts that support the conviction. James Kelly, Appellant’s
husband, was shot to death while he slept. The police learned that
Appellant had offered to pay several juveniles to kill Kelly. The
police invited Appellant to the sheriff’s office to answer questions.
While there, Appellant signed a written statement. In that statement
she admitted hearing some of the juveniles make a statement about
wanting to kill her husband, but did not admit to offering them
anything to kill her husband.
A Nacogdoches County grand jury indicted Appellant for the felony
offense of capital murder, alleging that she offered or gave another
person money and a vehicle to shoot James Kelly and that her actions
caused Kelly’s death. Prior to trial, Appellant filed motions to
suppress her statement to the police officers and to move the trial
from Nacogdoches County. The trial court held a hearing on each issue
and decided that the statement could be admitted and that the trial
should remain in Nacogdoches County. Appellant was convicted as
charged, and the court assessed punishment of life imprisonment.
Following the trial, Appellant filed a motion for new trial, alleging
that a juror engaged in misconduct. The trial court held a hearing
and denied the motion for new trial. This appeal followed.
Custodial Interrogation
In her first issue,
Appellant argues that the trial court erred when it overruled her
motion to suppress her statement to the police. Specifically, she
argues that she was subjected to a custodial interrogation without
being advised of her constitutional rights and that her statement to
the police should have been suppressed for that reason.
Applicable Law and
Standard of Review
When the police wish
to interrogate a person who is in custody, they must advise the person
that she has the right to remain silent, that any statement she makes
can be used against her, and that she has a right to an attorney. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612
16 L. Ed. 2d 694 (1966).1
Generally, the state may not use a statement obtained from the
custodial interrogation if these warnings, or their equivalent, are
not given. Id.
A person is in
“custody” only if, under the circumstances, a reasonable person would
believe that her freedom of movement was restrained to the degree
associated with a formal arrest. Herrera v. State, No.
PD-1986-05, 2007 Tex. Crim. App. LEXIS 1675, at *9–10 (Tex. Crim. App.
Nov. 21, 2007) (citing Dowthitt v. State, 931 S.W.2d
244, 254 (Tex. Crim. App. 1996)); see also Stansbury v.
California, 511 U.S. 318, 322, 325, 114 S. Ct. 1526, 1529–30,
128 L. Ed. 2d 293 (1994).2
This test is an objective one. SeeHerrera,2007 Tex. Crim. App. LEXIS 1675, at *10. The subjective
belief of law enforcement officials about whether a person is a
suspect is not important unless that belief was somehow conveyed to
the person who was questioned. Herrera,
2007 Tex. Crim. App. LEXIS 1675, at *10.
We review a trial
court’s ruling on a motion to suppress in the light most favorable
to the ruling. SeeState v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006). The trial court is the trier of
fact, and we afford almost total deference to the trial court’s
factual conclusions. See Wiede v. State, 214 S.W.3d
17, 24–25 (Tex. Crim. App. 2007). We afford the same deference to
the trial court’s rulings on “application of law to fact questions,”
also known as “mixed questions of law and fact,” if the resolution
of those questions turns on an evaluation of credibility and
demeanor. Montanez v. State, 195 S.W.3d 101, 106
(Tex. Crim. App. 2006). We review de novo wholly legal conclusions
as well as mixed questions of law and fact that do not turn on an
evaluation of credibility and demeanor. Id.
Analysis
Appellant argues that
her statement should have been suppressed because she was in custody
when she was questioned and was not given Miranda
warnings until the interrogation had proceeded for some time. She
cites Dowthitt, 931 S.W.2d at 254, for the proposition
that the question of whether she was in custody turns on whether
probable cause existed at the time of the questioning, the subjective
intent of the police, the focus of the police investigation, and the
subjective belief of the defendant.
In fact, the court in
Dowthitt notes that this subjective test for “custody”
has been replaced by an objective test. Id. at 254–55.
The objective test for whether a person is in custody includes the
following factors: (1) whether the suspect is physically deprived of
her freedom of action in any significant way, (2) whether a law
enforcement officer tells the suspect that she cannot leave, (3)
whether law enforcement officers create a situation that would lead a
reasonable person to believe that her freedom of movement has been
significantly restricted, and (4) whether there is probable cause to
arrest, that is “manifested” to the suspect, and law enforcement
officers do not tell the suspect that she is free to leave. Id.
at 255; see also Herrera, 2007 Tex. Crim. App. LEXIS
1675, at *9–10.
Applying these
factors, we hold that the trial court did not err when it denied
Appellant’s motion to suppress. The initial conversation with
Appellant was a voluntary encounter, and Appellant was not in
custody. The police invited Appellant to discuss the matter with
them, and they did not restrict her freedom of movement, tell her she
could not leave, or arrest her. The police officer testified that
Appellant was given Miranda warnings about twenty
minutes into the police interview. It appears that she was not free
to leave after that point. But before the warnings were given, there
was nothing to lead a reasonable person in Appellant’s position to
believe that her freedom of movement was restricted.
Appellant did ask if
she could go to attend to funeral arrangements. That request came
early in the conversation, and the police politely told her their
questions would not take long. A reasonable person would conclude, as
Appellant apparently did, that this was not a requirement that she
stay, but a reassertion that the conversation was a voluntary one and
that she would leave the interview at a time of her choosing. If the
police had determined that they had probable cause to arrest
Appellant, this information was not conveyed to Appellant before her
rights were read to her. Nor was she confronted with information
contrary to her assertions to the police, or accused of being involved
in her husband’s murder before the police advised her of her
Miranda rights.
Because Appellant was
not in custody for the initial part of the interview, the police were
not required to give her Miranda warnings before talking
to her. Therefore, the trial court did not err when it denied
Appellant’s motion to suppress her statement.3
We overrule Appellant’s first issue.
Pretrial Publicity
In her second issue,
Appellant argues that the trial court erred in denying her motion for
change of venue because of pretrial publicity.
Applicable Law and
Standard of Review
A change of venue may
be granted in any felony or misdemeanor case punishable by confinement
on the written motion of the defendant if there exists in the county
where the prosecution is commenced so great a prejudice against the
defendant that she cannot obtain a fair and impartial trial.
Tex. Code Crim. Proc. Ann.
art. 31.03 (Vernon Supp. 2007). When ruling on such a motion, the
trial court must determine whether the outside influences affecting
the “community climate of opinion as to a defendant are inherently
suspect.” Renteria v. State, 206 S.W.3d 689, 709 (Tex.
Crim. App. 2006) (citingDeBlanc v. State, 799 S.W.2d
701, 704 (Tex. Crim. App. 1990)). This is not a test of whether there
had been publicity about the charged offense. Id.
Rather, for a defendant to prevail on a motion to change venue, she
must demonstrate that publicity about the case is pervasive,
prejudicial, and inflammatory to the extent that an “actual,
identifiable prejudice attributable to pretrial publicity on the part
of the community from which members of the jury will come.” Id.
The court in Renteria stated that it was a “heavy
burden” on the defendant “to prove the existence of such prejudice in
the community [and] that the likelihood of obtaining a fair and
impartial trial jury is doubtful.” Id.
We review the court’s
ruling on a motion for a change of venue for an abuse of discretion.
Renteria, 206 S.W.3d at 709.
Analysis
This case involved a
murder for hire in Nacogdoches County in which Appellant was accused
of hiring juveniles to murder her husband. It received media
attention. By Appellant’s count there were twenty–three articles in
the local paper about the story and at least six television news
stories, some of which were repeated multiple times.
But the question for
the trial court was not whether there was pretrial publicity. As the
Supreme Court has stated, in the context of a high profile case,
“scarcely any of those best qualified to serve as jurors will not have
formed some impression or opinion as to the merits of the case.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6
L. Ed. 2d 751 (1961). We must therefore direct our attention to the
evidence to determine if there was an intolerable atmosphere of
prejudice. See Beets v. State, 767 S.W.2d 711, 744
(Tex. Crim. App. 1988) (op. on reh’g). One way to show that such an
atmosphere of prejudice existed is to show that the pretrial media
coverage was “pervasive, prejudicial, and inflammatory.” SeeRenteria, 206 S.W.3d at 709.
Appellant argues that
there is evidence of such an atmosphere in the record. Specifically,
she points to the quoted statements of Sheriff Kerss. Sheriff Kerss
told the media that Appellant offered to pay to have her husband
killed, that the crime was premeditated and ruthlessly carried out,
and that Appellant had been trying to have her husband killed for some
time. The first statement is a simple statement of the case. That
Appellant had been trying to accomplish this end for some time and
that the crime was premeditated and ruthlessly carried out invite the
listener to be prejudiced toward Appellant. But these statements were
isolated. We were able to locate them only one time each, and the
remainder of the media coverage was straightforward and without
statements or comments about Appellant’s character or motivation.
On the whole, the
media coverage was not the pervasive, prejudicial, and inflammatory
coverage that shows a fair and impartial jury could not be obtained.
By contrast, in Sheppard v. Maxwell, 384 U.S. 333,
356–57, 86 S. Ct. 1507, 1518–19, 16 L. Ed. 2d 600 (1966), the Supreme
Court overturned a conviction for murder. That case did involve
pretrial publicity that was prejudicial and inflammatory. The media
reported that
“Sheppard had purposely impeded the murder investigation and must be
guilty since he had hired a prominent criminal lawyer; that Sheppard
was a perjurer; that he had sexual relations with numerous women;
that his slain wife had characterized him as a ‘Jekyll-Hyde’; that
he was ‘a bare-faced liar’ because of his testimony as to police
treatment; and, finally, that a woman convict claimed Sheppard to be
the father of her illegitimate child."
Id.
The Court determined that this was the kind of prejudicial and
inflammatory publicity that violated the right to due process.
In Irvin,the rural community in which the trial was held had been
subjected to a barrage of inflammatory publicity immediately prior to
trial, such as information about the defendant’s prior convictions,
his confession to twenty-four burglaries and six murders including the
one for which he was tried, and his unaccepted offer to plead guilty
in order to avoid the death sentence. Irvin, 366 U.S.
at 725–26, 81 S. Ct. at 1644. As a result, eight of the twelve jurors
had formed an opinion that the defendant was guilty before the trial
began; some went “so far as to say that it would take evidence to
overcome their belief” in his guilt. Id., 366 U.S. at
728, 81 S. Ct. at 1645. In these circumstances, the Court found
actual prejudice against the petitioner to a degree that rendered a
fair trial impossible. See alsoRideau v. Louisiana,
373 U.S. 723, 724, 726, 83 S. Ct. 1417, 1418–19, 10 L. Ed. 2d 663
(1963) (The Court found that the trial was “but a hollow formality.”
The real trial had occurred when tens of thousands of people, in a
community of 150,000, had seen and heard the defendant admit his guilt
on television.); Rubenstein v. State, 407 S.W.2d 793,
798 (Tex. Crim. App. 1966) (McDonald, J., concurring) (Due process was
violated by jurors who witnessed the crime on television.).
The pretrial
publicity in this case does not approach the level of pervasive,
prejudicial, and inflammatory pretrial publicity that other courts
have found to be violative of due process. Nor has Appellant shown
that she was forced to accept a juror who was influenced by any
pretrial publicity. At the actual seating of the jury panel, many of
the venire members had heard of the matter. But few expressed that
they had made a decision, and only four potential jurors expressed
that they had formed an opinion about the case. Three of those jurors
were excused, but one served with no objection from Appellant.4
In Lewis v.
State, 654 S.W.2d 483, 484 (Tex. App.–Tyler 1983, pet. ref’d),
we held it “significant that Appellant did not object to any juror who
was seated.” See alsoGardner v. State, 733
S.W.2d 195, 204 (Tex. Crim. App. 1987) (“He does not contend nor does
our review of the entire voir dire examination show that he was forced
to take an objectionable juror.”). At least one Texas case has held
that a trial court does not abuse its discretion in overruling a
motion for change of venue if an objectionable juror serves without
objection. See Jones v. State, 489 S.W.2d 618, 619
(Tex. Crim. App. 1973) (citing Moon v. State, 169 Tex.
Crim. 14, 331 S.W.2d 312 (Tex. Crim. App. 1959)).
In sum, the pretrial
publicity did not rise to a level that challenged Appellant’s right to
a fair trial, and the trial court did not abuse its discretion when it
overruled Appellant’s motion for a change of venue. We overrule
Appellant’s second issue.
Motion for New Trial
In her third issue,
Appellant argues that the trial court should have granted her motion
for a new trial.
Standard of Review
We review a trial
court’s ruling on a motion for new trial for an abuse of discretion.
State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007).
We must view the evidence in the light most favorable to the ruling
and presume that all reasonable fact findings were made against the
losing party. SeeCharles v. State, 146 S.W.3d
204, 208 (Tex. Crim. App. 2004).
Analysis
Appellant filed a
motion for new trial. With her motion, she included affidavits from
two witnesses. The witnesses said in the affidavits that they
observed one of the jurors having lunch during a break in the trial,
that the juror said things about the trial, and that one of his
companions said something about the trial. A hearing was held on the
motion. One of the affidavit witnesses could not remember hearing
much of the juror’s conversation, and the other testified that she
heard the statements. The juror and his lunch companions all
testified that the reported part of the conversation did not happen.
Citing Renya v.
State, 846 S.W.2d 498, 503 (Tex. App.–Corpus Christi 1993, no
pet.), Appellant concedes that when the evidence conflicts, a trial
court’s ruling will ordinarily not be disturbed on appeal. Instead,
she argues that the trial court should have granted the motion for new
trial because the State did not file affidavits controverting the
affidavits she had filed.
We disagree. The
court in Renya held that the trial court should have
granted the motion for new trial because affidavits establishing juror
misconduct were not controverted. But we do not understand
Renya to mean that uncontroverted affidavits must be presumed
to be true. The court in Renya relied upon Smith
v. State, 530 S.W.2d 827, 829–30 (Tex. Crim. App. 1975), in
which the court held that uncontroverted affidavits established a fact
when the State’s affidavits did not challenge the relevant
assertions. Renya, 846 S.W.2d at 503.
The holding in
Renya is an extension of a logical tool: if a party can, but
does not, contest a factual assertion, the conclusion can be drawn
that the fact is true. For example, in Charles v. State,
146 S.W.3d 204, 210 (Tex. Crim. App. 2004), the court of criminal
appeals discussed affidavits and drew a distinction between facts that
“could have been readily controverted” and those that could not.
Nevertheless, the court concluded that deference was due to the trial
court’s factual findings “regardless of whether the affidavits are
controverted.” Id.
The Renyadecision does not establish, as Appellant contends, that evidence
can be controverted only by affidavits filed prior to a hearing. The
rules provide that the State may controvert a motion for new trial,
Tex. R. App. P. 21.5, but also provides for a hearing allowing
for presentation of evidence.
Tex. R. App. P. 21.7. At the hearing the State contradicted
the factual assertions made in the affidavits. All of the juror’s
lunch companions as well as the juror in question testified that the
relevant conversation did not occur. The trial court made findings,
including which witnesses it found to be credible. The court found
the juror and his lunch companions to be credible and did not make a
similar finding for the witnesses who gave affidavits and testified
for Appellant.
The trial court was
not required to grant Appellant’s motion for new trial simply because
the State did not file affidavits controverting the assertions
contained in the affidavits offered by Appellant. The evidence
conflicted, and the trial court’s decision to believe one group of
witnesses and not the other was reasonable, was supported by the
record, and is a factual determination to which we afford deference.
We overrule Appellant’s third issue.
Disposition
Having overruled
Appellant’s three issues, we affirm the judgment of the
trial court.
Brian Hoyle
Justice
Opinion delivered
January 24, 2008.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J
*****
1
Texas has incorporated the Miranda warnings into its
code of criminal procedure and added additional requirements. See
Tex. Code Crim. Proc. Ann.
art. 38.22 (Vernon Supp. 2007). Appellant argues only that she was
not warned as required by Miranda.
2
Appellant argues that Stansberry is analogous to this
case. On remand, the California Supreme Court held that Stansberry
was not in custody when he gave a statement to the police.
People v. Stansbury, 889 P.2d 588, 594 (Cal. 1995).
3 At oral
argument Appellant contended that the interrogation that preceded the
Miranda warnings was unlawful and poisoned the
statements made after the warnings were given. Such tainting is
possible, see, e.g., Missouri v. Seibert,
542 U.S. 600, 604, 124 S. Ct. 2601, 2605, 159 L. Ed. 2d 643 (2004),
but is not present in this case because Appellant was not in custody
for the first part of the conversation. Consequently, no illegal
custodial interrogation tainted the later questioning.
4
It is not clear whether Appellant had exhausted her peremptory
challenges, but she did not request an additional challenge.
