State v. Shuler ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-967
Filed: 7 April 2020
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. Heard in the Court of Appeals 17
March 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
Kiziah, for the State.
W. Michael Spivey for defendant-appellant.
TYSON, Judge.
Shanna Cheyenne Shuler (“Defendant”) appeals from judgment entered upon
the jury’s verdicts finding her guilty of trafficking in methamphetamine and simple
possession of marijuana. We find no error.
I. Background
A. State’s Evidence
Maggie Valley Chief of Police Russell Gilliland and Detective Brennan Regner
responded to a disturbance call at a motel involving the occupants of a silver Ford
STATE V. SHULER
Opinion of the Court
Fusion automobile on 2 March 2017. Detective Regner observed the vehicle at a
nearby residence, with a man standing outside the vehicle. Both officers approached
the man, who identified himself as Joshua Warren and presented a South Carolina
driver’s license. The officers determined outstanding warrants were pending for
Warren’s arrest. Warren was arrested, searched, and taken from the scene. The
officers found $1,700.00 in cash on Warren when he was searched.
The officers approached Defendant, who had been sitting in the vehicle, and
asked her for identification. Defendant produced a valid identification card. The
officers learned an arrest warrant was also pending for Defendant. Chief Gilliland
informed Defendant of the arrest warrant and asked if she had any contraband on
her. Defendant appeared hesitant, then removed a clear bag containing a leafy
substance from inside of her bra. Chief Gilliland specifically referenced
methamphetamine and asked Defendant again if she had anything else on her
person.
Detective Regner explained to Defendant that she could face additional
charges if she arrived at the detention facility with other contraband on her.
Defendant produced another clear bag, also from inside of her bra, containing a
crystal-like substance. The officers seized the evidence and the vehicle, and took
Defendant into custody.
-2-
STATE V. SHULER
Opinion of the Court
The next day, officers searched the vehicle. A digital scale, rolling papers, and
a clutch bag with Defendant’s name on it were found in the center console. Defendant
was charged with felony trafficking in methamphetamine and with misdemeanor
possession of marijuana. Prior to trial, Defendant timely filed her notice of intent to
offer the defense of duress pursuant to N.C. Gen. Stat. § 15A-905(c)(1).
Detective Regner testified for the State. The State asked her if Defendant had
made “any statements about Joshua Warren when she took those substances out of
her bra?” Defendant’s counsel objected, citing the right to counsel under the Fifth
Amendment to the Constitution of the United States. The trial court overruled the
objection. Detective Regner answered: “No, ma’am. She made no -- no comment
during that one time.”
Defendant’s counsel moved for the court to excuse the jury. Outside the
presence of the jury, Defendant’s counsel moved for a mistrial over the State’s
question, which had “solicited an answer highlighting [Defendant’s] silence at the
scene.” The trial court acknowledged Defendant’s prior objection and conducted a
voir dire of Detective Regner’s testimony to address whether Defendant was under
arrest at the time of her alleged silence.
Detective Regner testified during the voir dire that Defendant was not in
custody when she was approached and asked if she possessed any illegal substances
on her. On cross-examination during the voir dire, Detective Regner testified she and
-3-
STATE V. SHULER
Opinion of the Court
Chief Gilliland approached Defendant once they had learned of her pending arrest
warrant and asked her: “You’re under arrest, do you have anything on you?”
The trial court allowed the State to re-ask the question when the jury returned
over Defendant’s objection.
B. Defendant’s Testimony
Defendant testified in her own defense. She admitted she was addicted to
methamphetamine. Defendant had known Warren’s family. Warren had befriended
her on social media on 28 February 2019. She testified Warren asked her if she
wanted to accompany him as he rented a car on 2 March 2019. Defendant explained
Warren was “known to police” and “just wanted to be in a different car so he could go
and do whatever.” She testified she agreed to go with Warren because she had been
using methamphetamine, had been awake for eight days, and was bored.
Defendant testified Warren drove to a motel in Maggie Valley to meet the
person who would rent him another car. She testified the motel owner “had some
words” and was cursing with Warren when he stepped out of the car there. Warren
and Defendant left the motel. Defendant testified Warren then saw a truck with the
people he had intended to meet. Warren told them to meet him at a store across the
street from the motel.
Warren drove to the store and met with the people in the truck. Defendant
testified she saw Warren pull “a small baggie” out of his pants and hand it into the
-4-
STATE V. SHULER
Opinion of the Court
passenger side window of the truck. She then saw someone from the truck hand
money to Warren. She was sitting in the passenger seat of Warren’s car at the store
when they first saw the police arrive at the motel.
She testified Warren drove away from the store. Warren pulled the car into
the driveway of a house she did not know and exited the car. She presumed Warren
went to knock on the door of the house, while she remained in the passenger seat.
She testified Warren was returning to the car when the police officers arrived. The
officers spoke with Warren and left.
After the officers left, Warren told her he thought he had an active warrant for
his arrest “for tying my girlfriend to a tree.” She testified Warren then saw the
officers returning and cursed. He pulled a bag out of his pants and tossed it into
Defendant’s lap. She testified Warren stated, “if you don’t hide it then you’ll be the
next one chained to a tree.”
Defendant testified she took Warren’s threat seriously and put the bag he had
given to her into her bra. Defendant did not testify concerning her silence about
Warren’s threat in response to the officers’ questions to her.
Defendant also called Warren as a witness in her defense. Warren plead his
Fifth Amendment rights rather than answering most questions Defendant’s counsel
asked. Warren denied he had ever tied his girlfriend to a tree or had threatened
Defendant.
-5-
STATE V. SHULER
Opinion of the Court
The trial court instructed the jury on the defense of duress. The jury’s verdict
found Defendant guilty of both charges. The trial court consolidated the charges and
sentenced Defendant to an active term of 70 to 93 months in prison and ordered
$57,533.00 in fees, fines, and costs entered as a civil judgment. Defendant entered
notice of appeal in open court.
II. Jurisdiction
An appeal as of right lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-
27(b)(1) and 15A-1444(a) (2019).
III. Issue
Defendant argues the trial court erred by admitting into evidence testimony of
her silence in response to questions by the police officers. She asserts this admission
violates her privilege against self-incrimination under the Fifth and Fourteenth
Amendments to the Constitution of the United States.
IV. Standard of Review
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Veney, 259 N.C. App. 915, 917, 817 S.E.2d 114, 116 (citation omitted),
disc. review denied, 371 N.C. 787, 821 S.E.2d 169 (2018). “Under a de novo review,
the court considers the matter anew and freely substitutes its own judgment for that
of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294
(2008) (citation and internal quotation marks omitted).
-6-
STATE V. SHULER
Opinion of the Court
V. Analysis
Defendant argues the trial court erred in allowing the State to elicit evidence
of her silence, specifically her failure to implicate Warren, after he had been removed
from the scene, when asked by police if she had any contraband on her.
[A] criminal defendant has a right to remain silent under
the Fifth Amendment to the United States Constitution, as
incorporated by the Fourteenth Amendment, and under
Article I, Section 23 of the North Carolina Constitution. A
defendant’s decision to remain silent following [her] arrest
may not be used to infer [her] guilt, and any comment by
the prosecutor on the defendant’s exercise of [her] right to
silence is unconstitutional.
State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (citations omitted).
This Court has held “a defendant’s pre-arrest silence and post-arrest, pre-
Miranda warnings silence may not be used as substantive evidence of guilt, but may
be used by the State to impeach the defendant by suggesting the defendant’s prior
silence is inconsistent with [her] present statements at trial.” State v. Booker, __ N.C.
App. __, __, 821 S.E.2d 877, 885 (2018) (citation omitted). “Whether the State may
use a defendant’s silence at trial depends on the circumstances of the defendant’s
silence and the purpose for which the State intends to use such silence.” State v.
Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886, 894, disc. review denied, 362 N.C.
683, 670 S.E.2d 566 (2008).
A. Silence of Duress
-7-
STATE V. SHULER
Opinion of the Court
Defendant argues the State elicited her silence during its case in chief, by
anticipating and preemptively attacking her defense of duress. Defendant argues
this testimony was impermissibly admitted as substantive evidence, rather than
permissible impeachment evidence, because she had not yet testified.
The “main purpose of impeachment is to discount the credibility of a witness
for the purpose of inducing the jury to give less weight to [her] testimony.” State v.
Mendoza, 206 N.C. App. 391, 397, 698 S.E.2d 170, 175 (2010) (citation omitted). This
Court has held the State may not preemptively “point[] out to the jury that [a]
defendant chose to remain silent when in [a police officer’s] presence rather than
provide the explanation proffered at trial.” Id. at 398, 698 S.E.2d at 176.
In Mendoza, the State elicited testimony that the defendant did not act
surprised when the arresting officer found cocaine in his car, nor did he offer any
explanation as he was being arrested. Id. at 396-97, 698 S.E.2d at 174-75. This Court
held admission of that testimony as substantive evidence was error. Id. at 397, 698
S.E.2d at 175. Further, in Mendoza, this Court considered and rejected the State’s
argument that it may preemptively impeach the defendant before he testified. Id.
B. Affirmative Defense
Unlike in Mendoza, Defendant in this case filed written notice of her intent to
present an affirmative defense of duress. To invoke the affirmative defense of duress,
the burden is on Defendant to show her “actions were caused by a reasonable fear
-8-
STATE V. SHULER
Opinion of the Court
that [s]he would suffer immediate death or serious bodily injury if [s]he did not so
act.” State v. Cheek, 351 N.C. 48, 62, 520 S.E.2d 545, 553 (1999) (citation omitted),
cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).
The State argues Defendant’s intended invocation of the affirmative defense of
duress distinguishes this case from Mendoza and aligns this case with other cases
allowing impeachment by silence. When the State seeks to impeach a defendant
through silence, “[t]he test is whether, under the circumstances at the time of arrest,
it would have been natural for defendant to have asserted the same defense asserted
at trial.” State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984) (citing
State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980)).
In McGinnis, this Court found no error in the admission of the defendant’s
post-arrest pre-Miranda warnings silence, concluding: “it would clearly have been
natural for [the] defendant to have told the arresting police officer that the shooting
with which [he] was accused was accidental, if [he] believed that to be the case.” Id.
Here, it would have been similarly “natural for” Defendant to have told the arresting
officers the contraband she possessed belonged to Warren and he had threatened her
to conceal it, if she “believed that to be the case.” Id.
Warren had been arrested and removed from the scene before the officers
asked Defendant if she possessed any contraband on her. The threat Warren
-9-
STATE V. SHULER
Opinion of the Court
assertedly posed to Defendant was greatly mitigated, if not completely eliminated, by
his arrest and removal.
The only difference between this case and McGinnis is that the State elicited
evidence of Defendant’s silence asserting Warren’s threat in its case in chief.
Defendant had appropriately notified the State of her intended defense, pursuant to
N.C. Gen. Stat. § 15A-905(c)(1) (2019). The trial court had informed the prospective
jurors of Defendant’s affirmative defense of duress prior to the jury being empaneled.
Because the affirmative defense of duress was asserted before Defendant
testified, the exclusion of Detective Regner’s answer is not governed by Mendoza. We
find no error in the admission of Detective Regner’s testimony of Defendant’s silence
to challenge her affirmative defense of duress from Warren’s threats and her asserted
possession of contraband under duress, after his arrest and removal.
VI. Conclusion
The trial court properly overruled Defendant’s objection and admitted
Detective Regner’s testimony of Defendant’s silence of Warren’s alleged threat.
Defendant received a fair trial, free from prejudicial errors she preserved and argued.
We find no error in the jury’s verdicts or in the judgment entered thereon. It
is so ordered.
NO ERROR.
Judges BRYANT and ARROWOOD concur.
- 10 -