State v. Shuler ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-96
No. COA19-967-2
Filed 15 February 2022
Haywood County, No. 18 CRS 315-16
STATE OF NORTH CAROLINA
v.
SHANNA CHEYENNE SHULER
Appeal by defendant from judgment entered 31 October 2018 by Judge William
H. Coward in Haywood County Superior Court. Originally heard in the Court of
Appeals 17 March 2020. State v. Shuler, 270 N.C. App. 799, 841 S.E.2d 607 (2020).
Upon remand from the Supreme Court of North Carolina by opinion issued 13 August
2021. State v. Shuler, 378 N.C. 337, 2021-NCSC-89.
Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
Kiziah, for the State.
W. Michael Spivey for defendant-appellant.
TYSON, Judge.
¶1 The Supreme Court of North Carolina held Shanna Cheyenne Shuler
(“Defendant”) did not forfeit her Fifth Amendment right to silence when she provided
pretrial notice of her intent to offer an affirmative defense. The Supreme Court
remanded the case for this Court to determine whether the erroneously admitted
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testimony was harmless beyond a reasonable doubt. We conclude and hold the
admission of this evidence was harmless beyond a reasonable doubt.
I. Background
¶2 The background of the cause is detailed in both the Supreme Court’s and this
Court’s previous opinions. State v. Shuler, 378 N.C. 337, 2021-NCSC-89, 861 S.E.2d
512 (2021); State v. Shuler, 270 N.C. App. 799, 841 S.E.2d 607 (2020). The allegations
underlying Defendant’s trafficking in methamphetamine and simple possession of
marijuana are unnecessary to determine the issue upon remand.
¶3 The salient facts from the Supreme Court’s opinion are as follows:
Defendant was charged with felony trafficking in
methamphetamine and with misdemeanor simple
possession of marijuana. Prior to trial, defendant filed a
notice of her intent to rely upon the affirmative defense of
duress pursuant to N.C.G.S. § 15A-905(c)(1). In its
entirety, the notice stated the following:
Now comes the Defendant, by and through her
attorney, Joel Schechet and, in accordance with
N.C.G.S. § 15A-905(c), gives notice of the following
defense:
1. Duress
At trial, Detective Regner testified for the State during its
case-in-chief. The State asked Detective Regner if
defendant made “any statements” about Joshua Warren
when she handed over the substances in her possession.
Defense counsel objected, and the trial court overruled the
objection. Detective Regner then testified: “No, ma’am. She
made no—no comment during that one time.”
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Defense counsel asked for the trial court to excuse the jury
and then moved for a mistrial arguing that the State’s
question had “solicited an answer highlighting
[defendant’s] silence at the scene.” The trial court
conducted a voir dire to determine the admissibility of
Detective Regner’s testimony. Ultimately, the trial court
allowed the State to ask the question again when the jury
returned.
After the State’s case-in chief, defense counsel gave its
opening statement. Defendant then took the witness stand
to testify in her own defense. At the close of all the
evidence, the trial court instructed the jury on the defense
of duress. Ultimately, the jury found defendant guilty of
both charges. Defendant appealed to the Court of Appeals.
Shuler, ¶¶ 4-7, 378 N.C. at 338-39, 861 S.E.2d 512, 514-15.
¶4 Our Supreme Court recognized Defendant’s “silence could not have achieved
the purpose of impeaching her credibility as a witness” at the time of the detective’s
testimony since she had not testified yet. Id. ¶ 11, 378 N.C. at 339, 861 S.E.2d at 515.
The Court held: “The State cannot preemptively impeach a criminal defendant by
anticipating that the defendant will testify because of defendant’s constitutional right
to decide not to be a witness.” Id. ¶ 11, 378 N.C. at 340, 861 S.E.2d at 515. The Court
concluded it was error to admit the detective’s testimony into evidence. Id. ¶ 15, 378
N.C. at 341, 861 S.E.2d at 516.
¶5 Because the State did not argue any Fifth Amendment violation was harmless
beyond a reasonable doubt before the Supreme Court of North Carolina, that Court
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remanded to this Court. In its original brief before this Court, the State posited that
if the challenged evidence is substantive evidence of guilt, prohibited by the North
Carolina Constitution, the violation and its admission was harmless beyond a
reasonable doubt.
II. Analysis
¶6 “A violation of the defendant’s rights under the Constitution of the United
States is prejudicial unless the appellate court finds that it was harmless beyond a
reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable
doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2021).
¶7 This Court “may consider a number of factors” in making its determination of
whether the constitutional error was harmless beyond a reasonable doubt. State v.
Boston, 191 N.C. App. 637, 652-53, 663 S.E.2d 886, 896-97 (2008). These factors
include:
whether the State’s other evidence of guilt was substantial;
whether the State emphasized the fact of [the defendant’s]
silence throughout the trial; whether the State attempted
to capitalize on [the defendant’s] silence; whether the State
commented on [the defendant’s] silence during closing
argument; whether the reference to [the defendant’s]
silence was merely benign or de minimis; and whether the
State solicited the testimony at issue.
Id.¶8 In Boston, the Court pointed to the State’s overwhelming evidence of the
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defendant’s motive that was established through the testimony of two witnesses. Id.
at 653, 663 S.E.2d at 897. One of the witnesses also gave a consistent and detailed
account of the defendant’s involvement in the charged arson. Another witness
corroborated the source of the arson, which was consistent with other witness’
testimony. Id.¶9 The trial transcript showed the testimony relating to the defendant’s pre-
arrest silence was minimal. The State had not made the defendant’s “pre-arrest
silence a recurring theme of its case at trial,” and had not commented on the
defendant’s silence during closing argument. Id. This Court concluded beyond a
reasonable doubt that the jury would have reached the same verdict had the
testimony been excluded and held the error was harmless beyond a reasonable doubt.
Id.¶ 10 Here, the erroneously admitted evidence of Defendant’s silence could have only
related to Defendant’s affirmative defense of duress. The State contends even when
the evidence is considered in the light most favorable to Defendant, she failed as a
matter of law to assert or present a proper affirmative duress defense.
¶ 11 The State’s evidence tended to show Defendant was the driver and in control
of the vehicle. Defendant asserted at trial that she had only sat in the driver’s seat.
She testified Joshua Warren was the owner of the drugs and he had threatened her
in order to convince her to possess and hold onto the drugs.
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¶ 12 Defendant testified that as police approached, Warren pulled the bag of
methamphetamine from his pants and placed the drugs into her lap before he exited
the vehicle. The State’s evidence showed once Warren exited the vehicle, he did not
return.
¶ 13 The State’s evidence tended to show Defendant could have removed the
methamphetamine from her body after Warren had exited the vehicle. Both officers
investigating the incident testified Defendant showed no signs of duress and that
Warren was not present when they approached and communicated with Defendant.
¶ 14 In its closing arguments, the State argued duress was not applicable because
duress cannot be invoked by someone who has a reasonable opportunity to avoid the
undue exposure to death or serious bodily harm. See State v. Cheek, 351 N.C. 48, 61-
62, 520 S.E.2d 545, 553 (1999) (“In order to successfully invoke the duress defense, a
defendant would have to show that his ‘actions were caused by a reasonable fear that
he would suffer immediate death or serious bodily injury if he did not so act.’”)
(citation omitted). Defendant’s testimony at trial was the only evidence presented
indicating she acted under duress, and it was clearly likely for the jury to have
rejected Defendant’s affirmative defense.
¶ 15 The State also argues the error was harmless because other evidence of
Defendant’s guilt of possession of the marijuana and methamphetamine was
overwhelming. Defendant testified and admitted she knew what substances the bags
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contained when she placed them inside of her bra and admitted to possessing both
bags of illegal drugs on her person.
¶ 16 Defendant also acknowledged her purpose of being with Warren was “to get
high.” Defendant failed to contest the quantity of methamphetamine she possessed.
After Defendant’s arrest, officers executed a search warrant on the vehicle and
obtained a set of digital scales from the vehicle’s console, within the driver’s reach.
Beside the scale was a small handbag labeled, “Shanna Shuler, insane outlaw.”
¶ 17 Defendant offered the testimony of Joshua Warren at trial. He denied
threatening Defendant and pled the Fifth Amendment when asked if he had tossed
the bags of drugs into Defendant’s lap. Substantial and overwhelming evidence was
presented from which the jury could find beyond a reasonable doubt that Defendant
knowingly possessed both the small bag of marijuana and the approximately 40.39
grams of methamphetamine.
¶ 18 The State argues here, as in Boston, the sole reference to Defendant’s silence
regarding her duress occurred during the State’s questioning of Detective Regner. No
further reference to Defendant’s lack of response or silence was made by the State for
the remainder of the trial. The State did not cross-exam Defendant regarding her
silence after her testimony during which she repeatedly claimed duress or threats
from Warren.
¶ 19 Finally, the State argues the prosecutor did not reference her silence during
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its closing argument. The State did not attempt to “capitalize on” the challenged
evidence and asserts the evidence of Defendant’s silence was “de minimis.” Boston,
191 N.C. App. at 652-53, 663 S.E.2d at 897.
¶ 20 The State also cites State v. Richardson, 226 N.C. App. 292, 741 S.E.2d 434(2013) and State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989) to support the
erroneous admission of the detective’s testimony in the present case does not rise to
the level of the prejudicial error found in both cases. We agree.
¶ 21 In Richardson, the prosecutor questioned the defendant about his trial
testimony being his first statement, the number of attempts law enforcement had
made to interview him and also commented on his post-arrest silence in closing
argument. Richardson, 226 N.C. App. at 303-08, 741 S.E.2d at 442-45.
¶ 22 Our Supreme Court concluded: “The prosecutor’s cross-examination of
Defendant impermissibly focused almost exclusively on Defendant’s failure, unlike
other witnesses, to make a statement to investigating officers. Similarly, the
comments made by the prosecutor during his concluding argument to the jury clearly
constituted an impermissible comment upon Defendant’s decision to exercise his
constitutional right to remain silent after being placed under arrest.” Id. at 308, 741
S.E.2d at 445. The Supreme Court held, “the trial court’s failure to preclude the
challenged prosecutorial questions and comments rose to the level of plain error
despite the fact that the State elicited substantial evidence, taken in isolation, of [the
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defendant’s] guilt.” Id. at 310, 741 S.E.2d at 446.
¶ 23 In Hoyle, the defendant asserted his actions were in self-defense after a
struggle with the victim. Hoyle, 325 N.C. at 234, 382 S.E.2d at 753. The prosecutor
“repeatedly questioned” detectives and the defendant about whether the defendant
had ever told anyone that the victim had attacked him on the night of his murder.
Id. at 235, 382 S.E.2d at 753. Further, the prosecutor “made reference” to the
defendant’s silence in his closing argument before the jury. Id. at 236, 382 S.E.2d at
754.
¶ 24 Our Supreme Court held the trial court erred by allowing the questions and
that the “improper evidence was reinforced by the jury argument.” Id. at 237, 382
S.E.2d at 754. The Court held:
In this case there was not an eyewitness to the shooting
other than the defendant. His defense depended on the
jury’s acceptance of his version of the event. The State has
not demonstrated beyond a reasonable doubt that it was
harmless to attack the credibility of this version by
improper evidence[.]
Id.¶ 25 In both cases, the prosecutors repeatedly referenced the challenged evidence
and in Richardson, referred to it in closing arguments. Here, there was only one
reference during the detective’s testimony, and the impact on Defendant was
minimal. The State has proven the trial court’s error to be harmless beyond a
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reasonable doubt.
III. Conclusion
¶ 26 The State produced overwhelming evidence at trial showing Defendant’s guilt.
The State did not capitalize on the detective’s statement of Defendant’s silence and
did not reference Defendant’s silence in closing argument. The impact of Detective
Regner’s reference to Defendant’s silence was de minimis. Any erroneously admitted
testimony was harmless beyond a reasonable doubt. It is so ordered.
NO ERROR.
Judges ARROWOOD and GORE concur.