The state’s second-highest court has overturned a former Burlington man’s convictions of second-degree kidnapping in connection with an armed home invasion in Graham in early August 2023 and remanded the case to Alamance County superior court for resentencing.
The issues on appeal were whether: Alamance County senior resident superior court judge Andrew (“Andy”) Hanford, who presided over his trial in 2024, erred by denying the defendant’s motion to dismiss the second-degree kidnapping charges and by admitting testimony about property that was stolen but later recovered; whether the judge abused his discretion by allowing the prosecutor to introduce the recorded phone call into evidence; and whether grounds existed to review the defendant’s claim of ineffective assistance of counsel, among other issues.
Donnell Vincelle Holley, 36, black, male, had been living at 636 Fernway Drive in Burlington when he was arrested in September 2023, according to his Alamance County case file.
An Alamance County jury convicted Holley in July 2024 of multiple charges, including: two counts of felony robbery with a dangerous weapon; three counts of felony second-degree kidnapping; felony breaking and entering; felony assault with a deadly weapon with intent to kill; felony possession of a firearm by a felon; felony conspiracy; misdemeanor assault by pointing a gun; and misdemeanor assault on a child.
At the conclusion of his trial, Holley was sentenced to: a minimum of eight years, one month to a maximum of 10 years, nine months for the robbery with a dangerous weapon conviction; a minimum of three years, two months to a maximum of four years, 10 months for felony conspiracy to commit robbery with a dangerous weapon; two sentences ranging from a minimum of three years, two months to a maximum of four years, eight months for three counts of second-degree kidnapping; and a minimum of one year, seven months to a maximum of two years, eight months for possession of a firearm by a felon, with all sentences to run concurrently.
On appeal, Holley contended that Hanford had erred by denying his motion to dismiss the charges of: second-degree kidnapping of Britt, K.C., and Carey; possession of firearm by a felon; and conspiracy to commit robbery with a dangerous weapon.
According to the case background, Christopher Carey, his four-year-old son K.C. (who is identified by his initials to protect his identity), and his roommate Marcus Britt had been in their apartment in the 200 block of North Marshall Street in Graham at the time of the break-in and robbery. Carey and K.C. were in Carey’s bedroom. The doorbell rang. Britt opened the door, which connected to the living room, to find Holley standing there with another man, identified in the case background as Jamari Ivey, who pushed passed Holley and pushed Britt onto the floor, holding him at gunpoint.
Holley contended that Hanford had erred in denying his motion to dismiss the charges of second-degree kidnapping because the evidence introduced during the trial showed that it was actually Ivey who’d held Britt at gunpoint and pointed the gun at K.C., who had come around a corner into the living room, “of his own volition,” before Ivey ordered the child to sit on the living room couch, which he did, the case background states.
The Appeals Court agreed, concluding that neither Britt nor K.C. had been “removed” from the living room to another location; nor were they physically harmed, according to the opinion issued last week.
However, the court of appeals determined that Hanford had not erred by denying Holley’s motion to dismiss the charge of possession of a firearm by a felon, because evidence introduced and testimony given at his trial had shown that Holley “was in actual possession of a firearm” – a black handgun in his hand.
Holley challenged the prosecutor’s evidence “regarding a prior agreement between himself and Ivey to commit robbery with a dangerous weapon,” arguing that testimony given at his trial “raised the inference” that there had been no agreement to use a gun – rather, it was a spur-of-the-moment decision by Ivey.
The Appeals Court disagreed. Carey, one of the victims, testified at Holley’s trial that the defendant and Ivey had entered his apartment together; that held Carey, Britt, and K.C. at gunpoint; and both men “yelled at us that they would shoot us and demanded to know where’s everything at,” the case background states. Holley ransacked the apartment and took assorted items, before leaving the premises with Ivey.
“Thus, the evidence showed [that Holley] and Ivey had a mutual, implied understanding to commit robbery with a dangerous weapon,” according to the opinion that judge Toby Hampson wrote for the Court of Appeals.
The Appeals Court concluded that Hanford had not abused his discretion by allowing the prosecutor to introduce and play for the jury a recording of Carey and Britt calling Holley later on the same day of the robbery, in which Holley “made statements admitting to the robbery,” according to the case background.
Holley claimed that the recorded call was inadmissible because it violated a state Electronic Surveillance Act since he hadn’t consented to have the conversation recorded. The Appeals Court rejected that argument.
Holley also claimed that he had received ineffective assistance from his attorney, Janice Brooks of the Alamance County public defenders’ office, during his trial because she hadn’t objected to Carey’s testimony that he later recovered his Xbox from a U-Haul and also failed to cross-examine Carey about criminal charges that were pending against him in Alamance County. The Appeals Court was unable to reach a decision on that argument.
“We thus conclude further development of the facts would be required…dismiss [these claims] without prejudice to permit [the] defendant to pursue a motion for appropriate relief in the trial court,” Hampson wrote.
The Appeals Court vacated the second-degree convictions and remanded the case to Alamance County superior court for resentencing. Judges Thomas Murry and April Wood concurred with Hampson’s opinion for the Court of Appeals.
Holley is currently incarcerated at Central Prison in Raleigh, according to the North Carolina Department of Adult Corrections.
