ERVIN, Judge.
Defendant Roderick Tynell Richardson appeals from judgments entered based upon his convictions for two counts of assault with a deadly weapon with intent to kill inflicting serious injury and one count of possession of a firearm by a convicted felon. On appeal, Defendant argues, among other things, that the trial court committed plain error by allowing the prosecutor to question him and to make comments to the jury concerning his decision to refrain from making a statement to investigating officers. After careful consideration of Defendant's challenge to the trial court's judgments in light of the remand instructions that we have received from the Supreme Court, the record, and the applicable law, we conclude that Defendant is entitled to a new trial.
On the early morning of 20 May 2009, Sherman Cunningham was employed as a bouncer by the Carousel Club, an establishment located on South Boulevard in Charlotte. Mr. Cunningham's duties included checking patrons for guns, drugs, and other undesirable items. Defendant; his friend, Richard Snowden; Marcus Kinard; and Carousel Club employees Bryan Herron, Darwin Springs, and Lakeshia Reed were also present at the Carousel Club.
Although Mr. Kinard and Ms. Reed had once been involved in a romantic relationship, Defendant and Ms. Reed had begun dating after the Kinard-Reed relationship ended. During the evening, Ms. Reed became angry because Defendant was speaking with a dancer known as "Egypt." According to Mr. Cunningham, Ms. Reed had become intoxicated and was flirting with both Defendant and Mr. Kinard.
As the club was closing, Mr. Cunningham saw Defendant enter the passenger side of a car operated by Mr. Snowden which drove away from the club. Upon returning, Defendant approached Mr. Cunningham to ask about giving "Egypt" a ride home. At about the same time, Mr. Kinard was leaving with Ms. Reed, who kept getting out of Mr. Kinard's car and attempting to start a fight with "Egypt." After Defendant told Ms. Reed to come with him instead, Defendant and Mr. Kinard began arguing.
As Defendant approached Mr. Kinard, Mr. Cunningham saw the butt of a gun protruding from Defendant's pants. After noticing the gun, Mr. Cunningham "told [Defendant] that he needed to go back to the car with that" and informed both men that "this was a stupid argument." As the dispute "escalated," "[Mr. Kinard] stepped closer" and "hit [Defendant]" with his hand. After Mr. Kinard hit him, Defendant "pulled out his gun and started shooting," at which point Mr.
Mr. Springs, the head of security for the Carousel Club, testified that, on the evening of 20 May 2009, he was carrying a nine millimeter Glock handgun. After the Carousel Club closed, Mr. Springs went to the parking lot, where he saw a small crowd that included Defendant, Mr. Cunningham, and Mr. Herron. As Mr. Springs approached Defendant, who had been walking towards his car, Defendant "reversed direction and came towards [Mr. Kinard]" even though Mr. Springs was between the two men. Although Mr. Springs tried to stop the men from arguing, Mr. Kinard "was able to reach over the group" and "smack the Defendant." At that point, Mr. Springs "saw the gun being pulled from the waist area of the Defendant," who "began firing" and hit Mr. Kinard. In response, Mr. Springs fired a shot at Defendant, who turned and shot at Mr. Springs. After firing that shot, Mr. Springs' gun jammed, causing him to attempt to hide behind his car. As Mr. Springs ducked behind his vehicle, he was hit in the arm and, about "two seconds" later, in his leg. Although Mr. Springs did not see who shot him, he had seen Defendant and Mr. Herron, but not Mr. Kinard, in the possession of firearms.
Mr. Kinard testified that he went to the Carousel Club on 20 May 2009 to give some CDs to the substitute disk jockey, Mr. Herron. Mr. Kinard, who denied having had a firearm in his possession that evening, had several drinks during his time at the Carousel Club. Mr. Kinard had "messed around off and on for years" with Ms. Reed. Although he had heard that Defendant and Ms. Reed had "messed around," Mr. Kinard "didn't have any problems with that."
After the Carousel Club closed, Mr. Kinard went to the parking lot, where Ms. Reed told him that she would see him later. At that point, Defendant advised Ms. Reed to refrain from speaking with Mr. Kinard. After the two men began arguing, Defendant "flashed a gun" and said, "I've got you." In response, Mr. Kinard removed his jacket and approached Defendant. Although Mr. Cunningham positioned himself between the two men and urged them not to fight, Mr. Kinard stepped "to the side" and "slapped [Defendant]" on the face. At that point, Defendant shot Mr. Kinard "right above [his] ankle" and "above [his] knee." As Mr. Kinard tried to "get behind the car," Defendant "hit [him] four more times."
Mr. Herron testified that, after the Carousel Club closed on 20 May 2009, he retrieved a gun from his truck and started smoking a cigarette in the parking lot. As he stood there, Mr. Herron observed that Defendant and Mr. Kinard had begun arguing about Ms. Reed. As the argument continued, the two men "got closer to each other and the next thing you know [Mr. Kinard] slapped [Defendant]." After Defendant "flashed a gun," Mr. Kinard, who was unarmed, removed his coat and placed it on a car. At that point, when "[Mr. Springs] was about in the middle of [Defendant and Mr. Kinard,]" "[Defendant] pulled out a gun and pointed it at [Mr. Kinard,]" "started shooting from there," and continued to fire at Mr. Kinard even after Mr. Kinard had fallen. When Mr. Herron "saw that [Defendant] wasn't going to stop shooting, [he] pulled [his] gun up and started shooting at [Defendant.]"
At approximately 2:30 a.m. on 20 May 2009, Joseph Willinsky, a Charlotte-Mecklenburg Police Department crime scene investigator, went to the Carousel Club parking lot. At that location, Officer Willinsky collected a Smith and Wesson handgun, a Glock handgun containing several rounds of ammunition and one jammed bullet, and various other items, including bullets and spent shells. More specifically, Officer Willinsky collected several projectiles that had become embedded in a green Ford pick-up truck and a number of nine millimeter and .45 caliber shell casings. According to Todd Nordhoff, a firearms examiner with the Charlotte-Mecklenburg Police Department, the weapons recovered
Mr. Snowden, who had been convicted of conspiracy to commit murder in Connecticut in 1999, testified that he and Defendant had been friends for several years and regularly patronized the Carousel Club. At around 11:30 p.m. on 20 May 2009, Mr. Snowden and Defendant travelled to the Carousel Club in Mr. Snowden's car, where Mr. Snowden had "quite a few drinks" and talked to girls he knew. When the club closed at around 2:00 a.m., Mr. Snowden went to his car while Defendant waited for a dancer named "Egypt" to finish work. After Defendant emerged from the Carousel Club, Mr. Snowden drove Defendant to a nearby gas station before returning to the Carousel Club parking lot.
Upon their return, Defendant got out and walked towards the door from which "Egypt" was expected to emerge. At that point, Mr. Snowden noticed that Mr. Kinard was also in the parking lot. For that reason, Mr. Snowden got out of his car, approached Defendant and Mr. Kinard, and argued with Mr. Kinard. According to Mr. Snowden, there was "just a whole bunch of commotion," during which Mr. Snowden, who did not have a gun, was shot from behind by an unknown assailant. Despite the fact that Defendant "did not have a weapon out," Mr. Snowden saw Mr. Herron "push[Defendant] in the head" with what he thought was a gun. Mr. Snowden believed that Mr. Springs had a weapon in his possession as well. Mr. Snowden never saw Defendant either have a gun in his possession or fire a shot. After being shot, Mr. Snowden and Defendant drove to a nearby hospital for treatment.
Defendant testified that he and Mr. Snowden went to the Carousel Club on 20 May 2009 "to get a female." In view of the fact that Mr. Kinard and Ms. Reed had previously been involved in a romantic relationship, Mr. Kinard bore a certain amount of animosity toward Defendant after he started dating Ms. Reed. At the club, Defendant persuaded "Egypt" to return home with him after work. Defendant's activities angered Ms. Reed, who attempted to fight "Egypt" after the club closed.
At the end of the evening, Defendant and Mr. Snowden went to a nearby gas station for the purpose of buying condoms and then returned to the Carousel Club parking lot to wait for "Egypt." As the women exited the club, there was a "commotion" between Ms. Reed and "Egypt," leading Defendant to get out of the car. However, a Carousel Club employee annoyed Defendant by telling him that "Egypt" could not go with him. At that point, Mr. Kinard "started directing all of his aggressions towards [Defendant] and he started taking his coat and his stuff off." Although Defendant did not approach Mr. Kinard or have any desire to fight with him, Mr. Kinard was "calling names" and making "derogatory remarks" about Defendant.
As Mr. Kinard approached Mr. Snowden, the two "squared off" and "the commotion started." Defendant attempted to pull Mr. Snowden away from Mr. Kinard, saying "Man, this ain't worth it." Defendant did not flash a gun or have a firearm in his possession. As Defendant "started pulling [Mr. Snowden] back," his friend "kind of fell and [Defendant] ran." After Mr. Snowden was shot, Defendant reentered Mr. Snowden's car, at which point he discovered that he had been shot in the leg, chest, and back. At the hospital, law enforcement officers performed a gunshot residue test on Defendant's hands and arms.
Although Ms. Reed was employed as a bartender at the Carousel Club, she went to that establishment as a customer on 20 May 2009. At the Carousel Club, Ms. Reed drank shots of whiskey until she was "drunk." Upon noticing that Defendant had been talking with another woman, Ms. Reed made a rude gesture towards Defendant. After the other woman called Ms. Reed an offensive name, the two women began arguing.
Ms. Reed left the building at about the same time as Mr. Kinard. After going outside, Ms. Reed realized that Mr. Snowden and Mr. Kinard were about to fight. For that reason, Ms. Reed grabbed Mr. Snowden's arm while a friend tried to restrain Mr.
Although Starnecca Brown had previously worked at the Carousel Club, she was present at that location as a customer on 20 May 2009. Ms. Brown left the club at the same time as Ms. Reed and Mr. Kinard. When the group got outside, Ms. Reed began arguing with another woman, causing Ms. Brown to attempt to "calm her down." After Mr. Kinard became upset, Ms. Brown saw him taking off his jacket. Despite the fact that Ms. Brown heard Mr. Snowden and Mr. Kinard arguing, she could not see them. According to Ms. Brown, "[t]hey was arguing and so much commotion outside, so much arguing, and about a few minutes later after the argument started, shots were fired." At the time these shots were fired, Ms. Brown was talking with Defendant.
On 20 May 2009, Defendant was arrested for assaulting Mr. Springs and Mr. Kinard with a deadly weapon with the intent to kill inflicting serious injury. On 8 June 2009, the Mecklenburg County grand jury returned bills of indictment charging Defendant with assaulting Mr. Kinard and Mr. Springs with a deadly weapon with the intent to kill inflicting serious injury. On 30 November 2009, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with possession of a firearm by a convicted felon.
The charges against Defendant came on for trial at the 15 November 2010 criminal session of the Mecklenburg County Superior Court. At the conclusion of the trial, the jury convicted Defendant as charged. Based upon the jury's verdicts, the trial court sentenced Defendant to sixteen to twenty months imprisonment for possession of a firearm by a convicted felon, consolidated the two felonious assault charges for judgment, and sentenced Defendant to a consecutive term of 112 to 144 months imprisonment for assaulting Mr. Kinard and Mr. Springs with a deadly weapon with the intent to kill inflicting serious injury. Defendant noted an appeal to this Court from the trial court's judgments.
On 21 August 2012, this Court filed an unpublished opinion in State v. Richardson, ___ N.C.App. ___, 731 S.E.2d 275, 2012 N.C.App. LEXIS 999 (2012), finding no error in the trial court's judgments. On 21 September 2012, Defendant, acting pro se, filed a notice of appeal seeking review of this Court's decision by the Supreme Court of North Carolina. On 3 October 2012, the State filed a motion to dismiss Defendant's notice of appeal for lack of a substantial constitutional question. On 17 December 2012, the Supreme Court entered an order "allow[ing] Defendant's "Notice of Appeal for the limited purpose of remanding to the Court of Appeals for reconsideration in light of our decision in State v. Moore, ___ N.C. ___, 726 S.E.2d 168 (2012)." After conducting the additional review required by the Supreme Court on remand, we now file the present opinion, in which we grant Defendant a new trial.
In his brief, Defendant argues that the trial court committed plain error by allowing the State to cross-examine him about his failure to make a post-arrest statement to investigating officers and to comment on his
State v. Moore, ___ N.C. ___, ___, 726 S.E.2d 168, 172 (2012) (citing State v. Ward, 354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001)) (internal citation omitted), and quoting State v. Ladd, 308 N.C. 272, 283, 302 S.E.2d 164, 171 (1983) (internal citations omitted), State v. McCall, 286 N.C. 472, 484, 212 S.E.2d 132, 139 (1975) (internal citations omitted, and Grunewald v. United States, 353 U.S. 391, 425, 77 S.Ct. 963, 984-85, 1 L.Ed.2d 931, 955 (1957) (Black, J., Warren, C.J., Douglas & Brennan, JJ., concurring)). As a result, the extent to which "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).
State v. Mendoza, 206 N.C. App. 391, 395, 698 S.E.2d 170, 173-74 (2010) (citing Boston, 191 N.C.App. at 648-49, 663 S.E.2d at 894, and Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976)).
At trial, Defendant failed to object to most of the questions and prosecutorial comments upon which his request for appellate relief is predicated. In addition, the limited number of objections that Defendant did make at trial did not include any reference to the constitutional principle upon which he now relies.
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citing Odom, 307 N.C. at 661, 300 S.E.2d at 378-379, and quoting State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 806-807 (1983)). In deciding whether the admission of evidence relating to or a decision to allow a prosecutor to comment upon the fact that a defendant exercised his right to remain silent constituted plain error, "[c]onsideration of the way in which the evidence was presented or the prosecutor's use of the evidence is relevant to whether admission of the testimony at issue constituted plain error, but not to the threshold question of whether admission of the testimony was error." Moore, ___ N.C. at ___, 726 S.E.2d at 173.
In Moore, a witness made brief, unsolicited comments concerning the Defendant's decision to exercise his right to remain silent. In determining that the challenged comments did not constitute plain error, the Supreme Court stated that:
Moore, ___ N.C. at ___, 726 S.E.2d at 173-74 (quoting Black, 308 N.C. at 741, 303 S.E.2d at 807) (other citations omitted). In addition, the Supreme Court observed that, "on cross-examination[,] the State impeached defendant's testimony on a number of matters, including how often he had seen [the victim] prior to 2 February, the number and nature of his prior convictions carrying a sentence of more than sixty days imprisonment, and his consumption of alcohol on the day of the alleged incident" and noted that, "[o]n the record before this Court, the jury had reason to doubt defendant's credibility and to believe [the victim's] evidence." Id. Finally, the Supreme Court indicated that "[s]ubstantial evidence of a defendant's guilt is a factor to be considered in determining whether the error was a fundamental error rising to plain error" and pointed out in determining no plain error had occurred that "the evidence against defendant was substantial and corroborated by the witnesses." Id. at ___, 726 S.E.2d at 174-75. As a result, our review of Moore suggests that the following
After briefly discussing certain frames contained in a surveillance video that had been introduced into evidence, the prosecutor attempted, with limited success, to impeach Defendant on the basis of his pre-arrest silence. More specifically, Defendant acknowledged on cross-examination that, after he had been admitted to the hospital, several law enforcement officers came to see him. However, Defendant was in too much pain to converse with the officers at that time. In addition, the prosecutor asked Defendant whether Detective Redfern had attempted to interview him while he was in the hospital and whether Defendant had made certain statements to Detective Redfern. In response, Defendant denied any recollection of having conversed with Detective Redfern and testified that he did not "even know who [Detective] Redfern is." Finally, Defendant expressly denied having made particular statements to Detective Redfern.
"It is well settled.... that `questions asked by an attorney are not evidence.'" Kyle v. Holston Grp., 188 N.C. App. 686, 693 n. 1, 656 S.E.2d 667, 672 n. 1 (quoting State v. Taylor, 344 N.C. 31, 41, 473 S.E.2d 596, 602 (1996)), disc. review denied, 362 N.C. 359, 662 S.E.2d 905 (2008). Similarly, "`a question in which counsel assumes or insinuates a fact not in evidence, and which receives a negative answer, is not evidence of any kind.'" State v. Smith, 289 N.C. 143, 157, 221 S.E.2d 247, 255 (1976) (quoting State v. Anderson, 283 N.C. 218, 226, 195 S.E.2d 561, 566 (1973)). As a result of the fact that Defendant denied any recollection of having had a discussion with Detective Redfern and the fact that the State chose not to offer any testimony from Detective Redfern, the record contains no evidence that Detective Redfern attempted to conduct a pre-arrest interview with Defendant or that Defendant declined to answer his questions. Thus, the record contains no indication that the State elicited evidence impeaching Defendant on the basis of his pre-arrest silence as allowed in Boston.
Subsequently, the prosecutor questioned Defendant about the fact that his trial testimony, which had been presented to the jury after the presentation of the State's case, constituted the first statement which Defendant had made since the shootings occurred:
In addition, the prosecutor stressed the fact that, unlike Defendant, the other witnesses had given a statement to investigating officers immediately after the shootings. The clear import of the prosecutor's questions was that, because Defendant, unlike the other witnesses, chose not to make a statement about the shooting until trial, his account of the incident was inherently less credible than that of the other witnesses. As a result of the fact that Defendant was arrested on 20 May 2009, the prosecutor's questions about Defendant's silence "since May the 20th, 2009" clearly constituted an impermissible inquiry into Defendant's post-arrest silence.
In addition, the prosecutor questioned Defendant extensively about the extent to which Detective Strother, whom the State did not call as a witness, had attempted to interview him and about Defendant's failure to make a statement to her.
Even so,
We are unable to understand these prosecutorial questions as anything other than an attempt to impeach Defendant by eliciting testimony that he had had an opportunity to make a post-arrest statement to Detective Strother in the event that he was willing to waive his Miranda rights and that Defendant failed to "tell his side of the story." As a result, this questioning, which comprised a significant part of the Prosecutor's cross-examination of Defendant and which elicited evidence that Defendant had failed to make a statement after refusing to waive his Miranda rights, was clearly impermissible under Boston as well.
As a result of the fact that the available forensic evidence, including a blurry videotape, was less than conclusive, the jury's decision concerning the identity of the individual who had shot Mr. Kinard and Mr. Springs was likely to hinge upon the relative credibility of the parties' witnesses, including Defendant himself. For that reason, the State's closing argument centered on the prosecutor's contention that the State's witnesses were more credible than those offered by Defendant.
After reviewing the testimony of the State's witnesses, the prosecutor argued that Defendant "want[s] you to believe" that the State's witnesses were all lying despite the fact that they had no motive to do anything other than tell the truth. In addition, the prosecutor argued that the defense witnesses were not credible in that all of them were either intoxicated, had a criminal record, or
As we have already noted, the only evidence which might conceivably support the prosecutor's argument that Defendant "had some chances" to "tell his story" was Defendant's testimony that Detective Strother offered to interview him after his arrest in the event that he agreed to waive his Miranda rights. Thus, the prosecutor's final argument to the jury impermissibly emphasized the fact that Defendant chose to remain silent after being placed under arrest and advised of his Miranda rights.
After carefully reviewing the record, we conclude that, given the facts at issue here, the trial court's failure to take action to preclude the challenged questions and comments constituted plain error. 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. In fact, the prosecutor's challenge to Defendant's credibility was limited to questions and comments concerning his failure, unlike the other witnesses, to "tell his side of the story" during the investigative process. Thus, the challenged questions and comments at issue here, unlike those before the Supreme Court in Moore, were not indirect or incidental.
As we have already noted, the only issue in serious dispute at trial was the identity of the individual who shot Mr. Springs and Mr. Kinard. In support of its contention that Defendant shot Mr. Springs and Mr. Kinard, the State offered the testimony of four eyewitnesses, each of whom testified that Defendant drew a weapon and fired at Mr. Kinard and Mr. Springs. On the other hand, Defendant testified that he did not possess a firearm at the time of the shootings and that he had not shot either Mr. Kinard or Mr. Springs. In addition, Defendant offered the testimony of three others present at the scene, none of whom saw Defendant employ a firearm. After carefully reviewing the evidentiary record, we conclude, as we did in our initial opinion in this case, that the State's evidence of Defendant's guilt, taken as a whole and without reference to the impermissible prosecutorial questions and comments, was substantial.
Although the State's witnesses all worked together, there was no evidence that they were any more than co-employees. In addition, while Mr. Kinard had consumed impairing substances and became involved in an altercation with Defendant immediately prior to the shooting, the other witnesses for the State were sober and had no history of antagonism towards or bias against Defendant. Finally, the record does not reflect that any of the State's witnesses had a prior criminal record. On the other hand, Defendant and Mr. Snowden were close friends, Defendant and Ms. Reed were romantically involved, both Defendant and Mr. Snowden had previous felony convictions, and all of the individuals who testified on behalf of Defendant acknowledged consuming alcohol for several hours before the shootings. In addition, although each of the individuals who testified on Defendant's behalf were present at the
As Moore establishes, however, our plain error analysis cannot end with an evaluation of the substantiality of the State's evidence. Instead, the Supreme Court's decision in Moore establishes that our plain error analysis must also focus on the nature, extent, and seriousness of the underlying error as well. Unlike the situation at issue in Moore, the prosecutor in this case did directly elicit, emphasize, and capitalize upon impermissible information in attacking Defendant's credibility. As a result, given that the relative credibility of the State's witnesses and those proffered by Defendant, including Defendant himself, was the critical issue before the jury at Defendant's trial; the fact that Defendant did elicit a significant amount of evidence, including his own denial of involvement in the assaults upon Mr. Kinard and Mr. Springs; the fact that the State did not elicit any evidence attacking Defendant's credibility (as compared to that of other witnesses) other than his post-arrest silence; and the fact that the prosecutor directly elicited and both emphasized and capitalized upon impermissible information concerning Defendant's decision to invoke his right to remain silent, we are unable, given the analytical framework set out in Moore, to reach any conclusion other than that 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 Defendant's guilt.
Thus, for the reasons set forth above, we conclude that the trial court committed plain error by allowing the State to cross-examine Defendant about his post-arrest silence and to comment on Defendant's failure to give a statement to investigating officers during his closing argument to the jury. As a result, Defendant is entitled to, and is hereby awarded, a new trial.
NEW TRIAL.
Judges ROBERT C. HUNTER and STROUD concur.
