North Carolina Supreme Court Announces Pretrial Notice of Duress Defense Does Not Forfeit Fifth Amendment Right to Silence, Reaffirms Rule Against Preemptive Impeachment
by Anthony W. Accurso
The Supreme Court of North Carolina held that defendants filing a pretrial notice of intent to rely upon the affirmative defense of duress do not waive their Fifth Amendment right to silence.
On March 2, 2017, police approached a Ford Fusion in the parking lot of a motel in Maggie Valley. Joshua Warren was leaning against the vehicle, and after officers determined he had an outstanding warrant, he was arrested.
The driver of the vehicle, Shanna Cheyenne Shuler, also had a warrant for her arrest. Police asked if she had anything on her person, and she produced a clear baggie of cannabis. After being notified that being found in possession of any additional contraband during booking would result in additional charges, Shuler produced another baggie containing methamphetamine.
Shuler was charged with misdemeanor possession of cannabis and felony trafficking in methamphetamine. Prior to trial, she filed a notice under N.C.G.S. § 15A-905(c)(1), which declared her intent to rely on the affirmative defense of duress.
At trial, during the State’s case-in-chief, the prosecutor asked Detective Brennan Regner if the defendant made any statement about Joshua Warren when she handed over the baggies.
Regner testified, “No ma’am. She made no—no comment during that one time.”
The defense objected to the question on the basis that it “solicited an answer highlighting [defendant’s] silence at the scene,” which violates a defendant’s Fifth Amendment right to remain silent. After a vior dire, the trial court allowed the question and answer be entered into evidence and proceeded.
Shuler was convicted on both counts. Her convictions were upheld on appeal by a unanimous Court of Appeals, and she appealed to the North Carolina Supreme Court.
The Court framed the legal question for review as follows: “Did the Court of Appeals err by holding that a defendant who exercises their Fifth Amendment right to silence forfeits that right if they comply with N.C.G.S. § 15A-905(c)(1) and give notice of intent to offer an affirmative defense?”
The Court observed that the State elicited the answer from Regner regarding Shuler’s silence to preemptively impeach the credibility of Shuler because, according to the State, her notice under § 15A-905(c)(1) clearly signaled her intent to testify.
The Court flatly rejected the State’s position, noting that the “primary purpose of impeachment is to reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to [her] testimony.” State v. Ward, 449 S.E.2d 709 (N.C. 1994). However, at the time of Regner’s testimony, Shuler had not testified, so Regner’s testimony couldn’t serve the purpose of impeaching her credibility as a witness, the Court explained.
In rejecting the State’s approach, the Court further explained that Shuler’s pretrial notice didn’t obligate her to actually testify at trial, nor did it clearly show her intent to do so, as the State argued. The Court stated that criminal defendants have the right to testify or not at all times right up to the point they actually take the stand. U.S. Const. amend. V; N.C. Const. art. I, § 23; N.C.G.S. § 8-54; State v. Kemmerlin, 573 S.E.2d 870 (N.C. 2002). The Court explained that permitting preemptive impeachment evidence would likely “put before the jury evidence that is probably prejudicial” and ultimately never be admissible if the defendant were to invoke her Fifth Amendment right not to testify. The safest way to guard against this eventuality is to hold that impeachment evidence regarding the defendant’s credibility is inadmissible until the defendant actually testifies, the Court declared. That is, the Court reiterated its rejection of preemptive impeachment evidence in anticipation that the defendant will testify; such impeachment evidence doesn’t “appropriately recognize or protect the defendant’s Fifth Amendment right to choose whether or not to testify.”
The Court held that by Shuler giving pretrial notice of intent to invoke the affirmative defense of duress, “she does not give up her Fifth Amendment right to remain silent or her Fifth Amendment right to not testify, and the State was not permitted to offer evidence to impeach her credibility when she had not testified.” Thus, the trial court erred in admitting Regner’s testimony, the Court ruled.
Accordingly, the Court vacated the order of the Court of Appeals and remanded for that court to determine, after additional briefing, whether allowing Regner’s testimony was harmless beyond a reasonable doubt. See: State v. Shuler, 861 S.E.2d 512 (N.C. 2021).
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Related legal case
State v. Shuler
|Cite||861 S.E.2d 512 (N.C. 2021)|
|Level||State Supreme Court|