Criminal Practice – Failure to Make Statement to Law Enforcement – Defendant’s Silence During Closing Argument

The trial court did not plainly err in allowing the State to question Defendant about her failure to make a statement to law enforcement, because Defendant cannot establish that she was prejudiced by the challenged evidence, and the trial court did not abuse its discretion in failing to intervene ex mero motu during the State’s closing argument, because the statements were not grossly improper.

There was no plain error and there was no error.

Defendant appealed from the trial court’s judgments finding her guilty of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI). Defendant first argued the trial court plainly erred by allowing the State to repeatedly question Defendant about her failure to make a statement to law enforcement. We disagreed. Examining only the unchallenged evidence, there is substantial evidence that supports the State’s version of events, in contradiction of Defendant’s version of events, such that there is no showing that “the jury probably would have reached a different result.” Because Defendant has not satisfied the second factor of the three-factor plain error test, Defendant cannot demonstrate plain error. Accordingly, the trial court did not plainly err in allowing the State to question Defendant about her failure to make a statement to law enforcement.

Defendant next argued the trial court plainly erred by allowing the State to reference her silence during closing argument. We disagreed. The State’s references to Defendant’s silence were de minimis and, in context of the Record, do not rise to the level of being prejudicial to Defendant. In its closing argument that lasted for 34 pages of the trial transcript, the State referenced Defendant’s pre-trial silence to law enforcement only four times. Defendant was not prejudiced, because, in addition to providing evidence of Defendant’s silence, the State presented substantial evidence of Defendant’s guilt. It also does not appear from the Record that the State attempted to capitalize on Defendant’s silence. The references to Defendant’s silence were de minimis, and Defendant was not prejudiced because the State presented substantial evidence of Defendant’s guilt. Furthermore, the challenged evidence was “well within the ‘parameters of propriety’ for [the] trial court to permit that evidence to be described in closing arguments” because it did not rise to the level of plain error. Considering the statements made by the State during closing argument “in context and in light of the overall factual circumstances to which they refer[,]” the statements were not of such “a magnitude that their inclusion prejudiced [D]efendant, and thus should have been excluded by the trial court.” Accordingly, the statements were not so “grossly improper that the trial court abused its discretion by failing to intervene ex mero motu.”

No plain error and no error.

State of North Carolina v. Lavonda Marie Earley (Lawyers’ Weekly No. 011-069-25, 43 pp.) (Julee Flood, J.) Appealed from Union County Superior Court (Jonathan W. Perry, J.) Attorney General Joshua H. Stein, by Assistant Attorney General Caden William Hayes, for the State; Kaelyn N. Sweet for defendant-appellant. North Carolina Court of Appeals