STATE OF NORTH CAROLINA
v
.
STEPHEN ARCHIE SHORES
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
Appellate Defendant Staples S. Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
THOMAS, Judge.
Defendant, Stephen Archie Shores, appeals from judgment
entered on his conviction of second degree murder. For the reasons
herein, we order a new trial.
Defendant contends the trial court erred by (1) admitting
evidence of his post-arrest silence and allowing the State to
comment on such evidence in closing argument, (2) failing to
intervene ex mero motu to correct two grossly improper comments
made by the State's attorney during closing argument, (3) admitting
irrelevant and highly prejudicial evidence of defendant's prior
threats against unrelated third parties, (4) admitting irrelevant
and prejudicial evidence of other crimes committed by defendant,and (5) denying his request for a jury instruction on the duty to
retreat.
The State's evidence tends to show defendant and the victim,
Albert Shore, were in Jerry's Lounge in Surry County with four
other people on Sunday, 8 August 1999. Shore arrived there early
in the evening and proceeded to use cocaine and drink alcohol.
Defendant arrived at approximately 9:30 p.m., drank beer, played
pool, sat in his favorite bar stool, and generally kept to himself.
At approximately 11:15 p.m., the bartender announced "last
call." Defendant was sitting at the bar and had not talked to
Shore during the evening. Shore walked past defendant on his way
to the bathroom and called defendant a "narc." Shore suspected
defendant had informed on two people recently arrested for illegal
drug possession. When Shore came out of the bathroom, defendant
said, "I know you ain't talking about me because I ain't done
nothing." Shore replied, "I'm not talking about you, but I can
be." Shore then walked behind the bar and began arguing with
defendant, calling defendant an "SOB" and telling him "to leave"
because he was "barred" from the lounge.
As the argument between the two escalated, Shore grabbed
defendant's beer bottle from his hand and smacked him in the face.
Defendant fell and then moved away from the bar. Shore continued
to shout, "You're fucking barred and don't ever come back." Shore
then threw the beer bottle at defendant. The bottle hit defendant
and exploded. Defendant continued to move back.
Shore came from behind the bar, approached defendant, andbegan punching him. Defendant fell to the floor and covered his
head. Shore continued punching defendant in the head, hitting him
approximately thirty times. Shore eventually stopped, grabbed
defendant by the neck, dragged him across the floor and threw him
outside.
Defendant reentered the bar approximately ten to twenty
seconds later holding a pistol. Shore ducked behind one side of a
pool table while defendant ducked behind the other. Defendant
then fired a shot. Shore stood up and defendant fired a second
shot. Shore fell to the floor with defendant firing a third shot
and finally leaving the lounge. The autopsy showed Shore suffered
three gunshot wounds.
Defendant voluntarily surrendered at approximately 5:29 a.m.,
on 9 August 1999. He was read his Miranda rights and stated, "The
only reason I did it, I was afraid of him. I thought he was going
to kill me." Defendant was then taken to the hospital and treated
for injuries he suffered during the altercation.
Defendant was subsequently transported from the hospital to
the police station where he was again advised of his Miranda
rights, both orally and in writing. Defendant waived his rights
and gave an oral statement. He said Shore reached across the bar
and hit him in the eye, threw a beer bottle at him, knocked him to
the floor, and beat him on the head several times. He then pulled
a gun from his right rear pocket and shot Shore a couple of times.
Defendant, meanwhile, testified that he arrived at Jerry's
Lounge around 9:30 p.m. and was sitting at the bar at "last call." He and Shore were not having any problems with one another that
night when Shore suddenly approached him from behind, hit him on
the head, grabbed his beer bottle and ordered him to "get out."
Defendant backed toward the door. Shore then threw the beer bottle
at him. The bottle hit defendant on the side of the head and
exploded. At that time, defendant "wasn't moving too good" and
"was pretty-much addled." Shore then approached defendant,
grabbed him by the hair, threw him to the floor, and began beating
him over the head. Defendant testified, "[Shore] hit me a lot of
times. I was begging him to stop, but he just kept hitting me . .
. every time he hit me I could see stars." Defendant tried to
cover his head and did not strike back.
Shore finally let defendant up, but then kicked defendant in
the rear and out the front door of the bar. Shore, standing in the
doorway as defendant fell to the ground, said, "[I am] going to get
[my] gun and kill [you]."
As Shore went back inside the bar, defendant became fearful
that Shore was going to retrieve a gun and come back out to shoot
him. Defendant pulled his .25 caliber pistol from his pants pocket
and immediately reentered the bar. Shore saw defendant, moved to
his left and crouched behind a pool table. Defendant then heard
someone yell "he's got a gun." He thought Shore had retrieved a
gun so defendant then ducked behind the other end of the pool
table.
According to defendant, Shore stood up and started approaching
him. Defendant responded by firing one shot. Shore "kept comingaround the table" so defendant fired again. Shore "still kept
coming," and was within three feet of defendant, so defendant fired
a third shot from his crouched position. Shore fell to the floor
and defendant left the lounge. Defendant testified to firing
"three rapid succession shots" all within "maybe five seconds" and
stated that when he shot "I was in fear of my life."
The jury was instructed on first degree murder, second degree
murder, voluntary manslaughter and not guilty. It returned a
verdict of guilty of second degree murder and defendant was
sentenced accordingly.
Defendant first contends the trial court erred in allowing the
State to ask questions regarding his post-arrest silence and then
to comment on such evidence during closing argument. We agree.
The evidence shows defendant was arrested at approximately
5:29 a.m., on 9 August 1999, and orally advised of his Miranda
rights, including the right to remain silent. Defendant then
stated, "The only reason I did it, I was afraid of him. I thought
he was going to kill me." Later that morning, at approximately
9:10 a.m., defendant was taken to the police station and advised
both orally and in writing of his Miranda rights. Defendant waived
his rights and gave a short statement. He said Shore had reached
across the bar and hit him in the eye, threw a beer bottle at him,
knocked him to the floor, and beat him on the head several times.
He then pulled a gun from his right rear pocket and shot Shore a
couple of times.
Defendant exercised his right to remain silent from that pointuntil his testimony at trial.
On direct examination, defendant testified to a full
exculpatory account of the events. He stated Shore kicked him
several times and out the lounge's front door, and threatened from
the doorway "to get his gun and kill [defendant]." Defendant
responded by pulling his gun from his pocket and returning inside.
During cross-examination, the State's attorney repeatedly
questioned defendant about whether he had ever informed law
enforcement that Shore kicked him out the front door of the lounge
and threatened to kill him. The following are excerpted portions
of the exchange between the prosecutor and defendant:
Q. Mr. Shore -- Shores, this story that
you've told the ladies and gentlemen of the
jury today, have you told anybody else this
story?
A. No, sir. My attorney is all.
Q. Sir?
A. My lawyer.
Q. Your lawyer. Anybody else?
A. No.
Q. You haven't told the DA's office, have
you?
A. No, sir.
Q. Haven't told the investigating officer,
Johnny Belton, have you?
A. No.
Q. Haven't told any other officers, have
you?
A. No, sir.
Q. Haven't went over to the Sheriff's
Department and told them that story, have you?
MR. GARY VANNOY: Objection, Your Honor.
THE COURT: Court will sustain.
Q. Did you tell anybody other than your
lawyer?
MR. GARY VANNOY: Objection.
THE COURT: Objection overruled. You may
answer.
A. No, sir.
. . .
Q. Mr. Shore [sic], you didn't call up
Officer Cook and say, listen, I want to add
some more to that statement, did you?
A. No, sir.
Q. You didn't call him up and say, listen, I
want to tell you how he said he had a gun, he
was going to go get it and kill me. You
didn't call him up and tell him that, did you?
A. No, sir.
Q. You didn't call him up and say, listen, I
want to tell you about how he was kicking me
also.
A. No, I didn't. I didn't know I could do
that.
Q. Between August the 8th, 1999 and today
you didn't know that you could call up the
officer and tell him your story?
MR. GARY VANNOY: Objection.
THE COURT: Objection overruled. You may
answer.
A. No, I didn't know.
. . . . During the State's rebuttal case, the prosecutor also
questioned Officer Cook concerning defendant's exercise of his
right to remain silent following his 9 August 1999 statement. The
following exchange took place.
Q. Did [defendant] ever tell you about any
kicking incident in which Albert Shore kicked
Stephen Shores down and kicked him on the
floor?
MR. GARY VANNOY: Objection.
THE COURT: Objection overruled. You may
answer.
A. No, sir, he didn't.
Q. Did he at any time tell you about any
kicking?
A. No, sir.
Q. Did he at any time tell you that Albert
Shore said, "I've got a gun; I'm going to go
get it, and I'm going to kill you?"
A. No, sir.
Q. Did he at any time tell you that after
stepping outside he walked back in the place
of business and had a gun that was on his hip
and he pulled it out?
A. No, sir.
. . .
Q. At any time after you advised him of his
rights, he gave you that statement, did he
ever come to you again and tell you anything
additional?
A. No, sir.
MR. GARY VANNOY: Objection.
THE COURT: Objection overruled.
Q. Did he at any time call you and tell youany additional statements?
A. No, sir.
. . . .
Finally, the prosecutor made reference to defendant's silence
during his closing argument:
Ladies and gentleman of the jury, what would
be wrong when you're represented by a lawyer
[with] calling up the police or having the
lawyer call them up and say "let me tell you
some more, let me tell you the rest of this?"
He didn't do that. He didn't call the DA's
office. He didn't call any police officer.
He didn't call the investigating officer. He
didn't do any of that. Right on that stand he
said "I have told this story for the first
time today other than [to] my lawyers."
Ladies and gentlemen of the jury, ask yourself
now "why on earth would I wait until now to
try to tell that story if I had that kind of
story? Why would I do that?
. . . .
"It is well established that 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."
State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001).
The United States Supreme Court held in Doyle v. Ohio, 426
U.S. 610, 49 L. Ed. 2d 91 (1976), that it is fundamentally unfair
and a deprivation of a defendant's due process rights under the
Fourteenth Amendment to impeach the defendant on cross-examination
by questioning him about his silence. Id. at 618, 49 L. Ed. 2d at
98; accord State v. Hoyle, 325 N.C. 232, 236, 382 S.E.2d 752, 754
(1989); State v. Williams, 67 N.C. App. 295, 298-99, 313 S.E.2d170, 172 (1984). This is so because once a person under arrest has
been advised of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 16 L. Ed. 2d 694 (1966), which includes the right to remain
silent, there is an implicit promise that his silence will not be
used against him. Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98;
Hoyle, 325 N.C. at 236, 382 S.E.2d at 754.
In Hoyle, the defendant was arrested, charged with murder and
advised of his Miranda rights. He told the officers he would not
sign a waiver of his rights without a lawyer being present but that
he would answer some questions. He then answered some of the
officers' questions but when asked "what happened when the [victim]
followed him to his truck?" he replied he would "rather not say
without having talked with his lawyer." The officers did not
question him further.
At trial, the defendant testified that he was attacked by the
victim when he went to his truck, the two men struggled for
defendant's gun, and, during the struggle, the gun discharged and
the victim was shot. The prosecutor repeatedly questioned both
the officer and defendant as to whether the defendant had informed
anyone that the victim had attacked him on the night of the murder.
The prosecutor also made references in his closing argument to the
defendant's failure to tell the police of his defense.
The Supreme Court held that the prosecutor's questions and
argument to the jury violated the defendant's right to not have his
silence used against him. Hoyle, 325 N.C. at 237, 382 S.E.2d at
754. In State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980), the
defendant was arrested and transported to the police station where
a detective began reading the indictments to him. The defendant,
who had not been given his Miranda warnings, interrupted the
reading of the indictments and stated, "Hell, I sold heroin before,
but I didn't sell heroin to this person." He made no other
statements to the officers.
At trial, defendant testified to an alibi that placed him out
of town on the night of the alleged crime. On cross-examination,
the State's prosecutor was permitted over the defendant's objection
to ask whether he had previously told the police, any of the
district attorneys or anyone else about the alibi to which he
testified at trial.
On appeal, the Supreme Court first noted that, with or without
Miranda warnings, the defendant's exercise of his right to remain
silent was guaranteed by the state and federal constitutions. The
Court reasoned that the defendant's failure "to state his alibi
defense at the time the indictment was being read to him or at any
time prior to trial did not amount to a prior inconsistent
statement." Therefore, the Court concluded it was prejudicial
error to allow the defendant to be cross-examined as to why he did
not tell the officers of the alibi he used at trial. Id. at 387,
271 S.E.2d at 277.
Recently, in State v. Ward, 354 N.C. 231, 555 S.E.2d 251
(2001), our Supreme Court addressed the use of a defendant's right
to remain silent in the context of a closing argument in a capitalsentencing proceeding. There, the defendant gave a statement to
police after being arrested in which he denied his participation in
the crimes. He stated that on the day of the murder he woke up at
7:45 a.m. and stayed with his wife and father.
At the sentencing hearing, the prosecutor argued the following
regarding the defendant's post-arrest silence while at Dorothea Dix
Hospital:
He started out that he was with his wife
and child or wife and children or something on
that morning. We know he could talk, but he
decided just to sit quietly. He didn't want
to say anything that would "incriminate
himself." So he appreciated the criminality
of his conduct all right.
He was mighty careful with who [sic] he
would discuss that criminality, wasn't he? He
wouldn't discuss it with the people at Dix.
Id. at 266, 555 S.E.2d at 273.
After recognizing a defendant's general right to remain silent
under the state and federal constitutions, the Supreme Court
stated:
A defendant's decision to remain silent
following his arrest may not be used to infer
his guilt, and any comment by the prosecutor
on the defendant's exercise of his right to
silence is unconstitutional. "A statement
that may be interpreted as commenting on a
defendant's decision [to remain silent] is
improper if the jury would naturally and
necessarily understand the statement to be a
comment on the [exercise of his right to
silence.]".
Applying these principles to the argument in
question, we hold that the prosecutor
impermissibly commented on defendant's silence
in violation of his rights under the state and
federal Constitutions. As we noted in
Mitchell,
"district attorneys and assistant district
attorneys have a duty as officers of the court
and as advocates for the people to conduct
trials in accordance with due process and the
fair administration of justice and should thus
refrain from arguments that unnecessarily risk
being violative of a defendant's
constitutional rights, thereby necessitating
new trials."
Id. (citations omitted).
Here, we are constrained to hold that the rule set forth in
Doyle and applied by our Supreme Court in Hoyle, Lane and Ward was
violated in this case. Defendant initially waived his right to
remain silent and gave police two statements on 9 August 1999
describing the incident. At trial, he gave a more detailed
exculpatory account of the incident. His account at trial was not
inconsistent with the statements given to police. He merely
provided more detail concerning his fear that Shore was going to
kill him.
From 9 August 1999 until his testimony at trial, defendant had
a constitutional right to remain silent. The State attorney's
questions and his argument to the jury violated defendant's right
to remain silent.
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) (2001); Hoyle, 325 N.C. at 237, 382
S.E.2d at 754. The test is whether the appellate court can declare
a belief that there is no reasonable possibility that the violationmight have contributed to the conviction. Lane, 301 N.C. at 387,
271 S.E.2d at 277.
Here, we are required by applicable precedent to hold that
there was a violation of defendant's constitutional rights. The
State's cross-examination of defendant, examination of the officer
and closing argument attacked defendant's exercise of his right
against self-incrimination in such a manner as to leave a strong
inference with the jury that part of defendant's testimony was an
after-the-fact creation. Defendant's testimony about Shore's
threat was crucial to his defense which centered on self-defense
and heat of passion. It seems probable that the State's questions
and its closing argument contributed to his conviction. Since we
cannot declare beyond a reasonable doubt that there was no
reasonable possibility that the prosecutor's conduct might have
contributed to defendant's conviction, we hold it was sufficiently
prejudicial to warrant a new trial.
Three of defendant's remaining assignments of error are not
sufficiently likely to occur at a new trial, so we decline to
address them. We do wish, however, to briefly address defendant's
contention that the trial court erred in not intervening ex mero
motu in the State's closing argument, which he contends contained
two grossly improper remarks.
We take this opportunity to bring attention to our Supreme
Court's recent decision in State v. Jones, 355 N.C. 117, 558 S.E.2d
97 (2002). It emphasized an attorney's professional and ethical
responsibilities to avoid closing arguments which are abusive,injected with personal opinion and experience or otherwise stray
from the record. Id. at 134-35, 558 S.E.2d at 108-09.
For the reasons herein, we award defendant a new trial.
New trial.
Chief Judge EAGLES and Judge MARTIN concur.
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