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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. CHAD EVRIST HERNDON
Filed: 2 May 2006
1. Evidence--cross-examination--right to remain silent
The prosecution was not improperly permitted to cross-examine defendant in a voluntary
manslaughter case even though defendant contends it violated his right to remain silent, because:
(1) assuming defendant's objection properly preserved for review a challenge to the pertinent
questions and answers, it is not apparent that the State was commenting on post-Miranda silence
when the testimony is reviewed in context; (2) if the questioning related to defendant's
conversation with a deputy on the day of the shooting, post-Miranda silence was not implicated;
and (3) defense counsel failed to object to the initial questions and any later objection regarding
the State's initial questions was not preserved for appellate review.
2. Criminal Law--prosecutor's argument--defendant's right to remain silent
The trial court did not err in a voluntary manslaughter case by failing to intervene ex
mero motu during certain portions of the State's closing argument where defendant contends the
State improperly referred to defendant's exercise of the right to remain silent and asked the jury
to discount defendant's testimony, because: (1) contrary to defendant's assertion, the State was
referring to the testimony of his brother and his girlfriend's failure to support defendant's version
of the facts; (2) taken in context, the pertinent portion of the closing argument does not
necessarily refer to any post-Miranda silence by defendant, but to the refusal of some
eyewitnesses and the willingness of another to give statements to the investigators on the day of
the shooting; and (3) the other pertinent portion of the closing argument was supported by the
cross-examination of defendant's brother, the direct examination of the investigating detective,
and the earlier argument regarding defendant's brother and his girlfriend.
3. Homicide--instruction--voluntary manslaughter
The trial court did not commit plain error by instructing the jury on voluntary
manslaughter in addition to first-degree murder, second-degree murder, self-defense, and defense
of others, because: (1) defendant's own evidence tends to show the elements of imperfect self-
defense; and (2) substantial evidence was presented from which a rational trier of fact could find
defendant employed excessive force in shooting the victim five times with three shots striking
the victim in the back and buttocks while acting in self-defense.
4. Criminal Law--instruction--aggressor--collateral estoppel_-double jeopardy
The trial court did not commit plain error in a voluntary manslaughter case by giving the
jury an aggressor instruction where an earlier jury in defendant's first trial allegedly previously
determined he was not the aggressor, because: (1) the doctrine of collateral estoppel did not
apply, nor did jeopardy attach, when no unanimous verdict was reached by the earlier jury about
whether defendant was the aggressor; and (2) the note from the prior jury stating it had
determined that defendant was not the aggressor merely demonstrated a moment in time during
the jury deliberations.
Appeal by defendant from judgment entered 23 August 2004 by
Judge Robert F. Floyd, Jr., in Robeson County Superior Court.
Heard in the Court of Appeals 26 January 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen E. Long, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
Chad Evrist Herndon (defendant) appeals from judgment
entered after a jury found him to be guilty of voluntary
manslaughter. We find no error.
In late July 2001, defendant's girlfriend, Sherri Dail
(Dail) told defendant she was having an affair with Darren
Locklear (the victim), a married man. Defendant called the
victim's wife, Yolanda Locklear, who told him she was also aware of
her husband's affair with Dail.
In the early morning hours of 3 September 2001, Michael Shane
Herndon (defendant's brother) was present at a party at the home
of Shmora Locklear (Shmora). The victim also attended the party
and was sitting at a table with a gun by his feet. Conflicting
evidence was presented to show the victim had blocked defendant's
brother's car and prevented him from leaving the party.
Defendant's brother telephoned defendant, who drove to the party.
Conflicting evidence was also presented at trial regarding
whether defendant was armed. Shmora testified defendant exited hisvehicle with two guns and gave one gun to defendant's brother, but
did not bring a gun into her residence. India Lowery, was present
at Shmora's residence, and testified defendant exited the vehicle
with a gun.
Defendant's brother testified he never saw defendant with a
gun. Defendant testified a gun was present in his vehicle, but he
did not remove it. Guests at the party intervened and prevented a
confrontation between defendant and the victim. Defendant and his
brother left Shmora's residence. Defendant testified he received
a threatening telephone call at his home from the victim later that
Defendant and Dail left and drove toward Fayetteville to
purchase birthday party supplies for their two-year-old child.
While en route, defendant's brother telephoned defendant and told
him the victim had called again and said he was on his way over
and he was going to shoot the house up and kill everybody back
there. Defendant's brother informed defendant that the victim had
called from a Pembroke telephone number. Defendant turned around
his vehicle, returned to his residence, picked up his brother, and
drove toward Pembroke. Defendant testified that means he was
halfway from his house to mine. And he was actually coming over.
Three witnesses testified to the events that occurred next:
defendant, defendant's brother, and Shane Hunt (Hunt), who was a
passenger in the victim's vehicle that morning. As defendant drove
towards Pembroke on Union Chapel Road, he saw a white Ford
Expedition belonging to the victim driving toward him. Defendantdrove into a vacant parking lot. The victim drove his vehicle off
of the highway and parked in front of defendant's vehicle. Both
defendant and the victim exited their vehicles. Defendant was
Defendant and defendant's brother testified that the victim
pointed a gun at defendant's face and pulled the trigger, but the
gun misfired. Hunt testified the victim did not point the gun at
defendant. Lumberton police officer Lewis Woodard testified he
found a spent casing in the chamber of the victim's gun.
Undisputed evidence shows the victim struck defendant on his head
with the gun. Defendant returned to his vehicle after being struck
by the victim's gun. Defendant and his brother testified they saw
the victim pulling the slide of his gun. Defendant entered his
vehicle to leave the scene.
Defendant and his brother's testimonies conflict with Hunt's
testimony regarding the shooting. Hunt testified the victim said
something similar to I knew you wasn't going to do nothing. Hunt
also testified the victim turned around to return to his vehicle
and defendant began shooting at the victim from the window of
Defendant and his brother testified that after defendant
entered his vehicle, defendant's brother saw the victim walking
towards defendant's vehicle and raise his gun. Defendant's brother
told defendant, He's getting ready to shoot. Defendant testified
he grabbed his gun and observed the victim coming towards his
vehicle and pointing a gun at him. At that point, defendant juststarted shooting at the victim from the window of his vehicle.
Defendant testified he did not know where he hit the victim and did
not see the victim after he stopped shooting. As defendant left
the scene, Hunt emerged from the victim's vehicle holding a gun.
Defendant stopped a black truck driving in the opposite
direction. The truck was driven by Andy Scott (Scott).
Defendant told Scott that he had just shot a boy and wanted [him]
to call the ambulance. Defendant returned to his vehicle and told
his girlfriend, Dail, to call the police and inform them that he
was en route to the police station. Dail did not testify at trial.
Pembroke Police Officer John Veneziano (Officer Veneziano)
was off duty and driving down Union Chapel Road when he observed a
white sport utility vehicle parked on the side of the road with a
male lying on the ground on the driver's side. Officer Veneziano
observed a gun located about five inches from the victim's right
hand and a pool of blood gathering around his mid-section.
Robeson County Sheriff's Deputy Hubert Brian Graham (Deputy
Graham) testified he was dispatched to the scene of the shooting.
While Deputy Graham was en route to the scene in a marked patrol
car, he noticed defendant's vehicle pass him with flashing lights.
Deputy Graham turned his vehicle around and defendant's vehicle
came to a stop. Defendant told Deputy Graham that he shot the
person in Union Chapel. Deputy Graham put defendant into the back
of his patrol car and removed two firearms from defendant's
vehicle. Deputy Graham's First Sergeant told him to turn defendant
over to Pembroke police officers and proceed to the scene. DeputyGraham arrived on the scene shortly after the ambulance. Deputy
Graham testified the victim was alive upon his arrival and that he
heard the victim speak to EMS personnel.
Dr. Richard Johnson (Dr. Johnson) appeared as a witness for
the State as an expert pathologist and testified that the autopsy
he performed revealed five gunshot wounds on the victim's body.
The victim received three shots to the back, one shot to the upper
left buttocks, and one shot to the front of the right leg.
Defendant was charged, and later indicted by a grand jury, for
first-degree murder. Defendant was initially tried in March 2003
in Robeson County Superior Court. The trial court declared a
mistrial on 11 March 2003 after the jury announced their inability
to reach a unanimous verdict. Defendant was retried in August 2004
in Robeson County Superior Court. The jury found defendant to be
guilty of voluntary manslaughter. The trial court sentenced
defendant to a minimum term of fifty-seven months and a maximum
term of seventy-eight months imprisonment. Defendant appeals.
Defendant argues: (1) the State's cross-examination and
closing argument violated his right to remain silent; (2)
insufficient evidence was presented to support the voluntary
manslaughter verdict; and (3) the trial court erred in giving the
jury an aggressor instruction after an earlier jury had determined
him not to be the aggressor.
III. Defendant's Right to Remain Silent
Defendant argues a new trial is required because the State's
cross-examination of him and its closing argument violated his
right to remain silent. We disagree.
A criminal defendant has a right to remain silent under the
Fifth Amendment to the United States Constitution, as incorporated
and binding upon the states by the Fourteenth Amendment, and under
Article I, Section 23 of the North Carolina Constitution. U.S.
Const. amend. V; U.S. Const. amend. XIV; N.C. Const. art. I, sec.
23. A defendant's silence after receiving Miranda warnings cannot
be used against him as evidence of guilt. State v. Best, 342 N.C.
502, 519, 467 S.E.2d 45, 55-56 (1996) (citing Doyle v. Ohio, 426
U.S. 610, 49 L. Ed. 2d 91 (1976) (holding that when Miranda
warnings are given, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence
to be used to impeach an explanation subsequently offered at
 Defendant asserts the State improperly questioned him
about invoking his right to silence. The transcript shows the
following exchange occurred during the State's cross-examination of
Q: You have had plenty of time to get this
story straight with your brother, have you
A: It's the same thing I testified to last
Q: Have you had a lot of time to get your
story straight with your brother?
A: If we had to get the story straight.
Defense Counsel: Object. Object.
The Court: Well, Mr. Herndon, answer the
question if you can, and then you may explain
your answer within the context and the
boundaries of the question.
Defense Counsel: Well, I object to the form of
the question, your Honor.
The Court: Overruled.
The Witness: Could you repeat your question
Q: When was the first time that you ever told
the story that you told in the last
A: To my attorney, Angus Thompson, the next
Q: Not the police?
A: Excuse me?
Q: Not the police?
A: I was already charged with murder.
Q: So you didn't want to tell them that you
had acted in self-defense?
A: I was already charged with murder.
When the State repeated the last question, defense counsel
objected. After the trial court overruled defendant's objection,
defense counsel requested a bench conference at which he argued
that the question violated defendant's Fifth and Sixth Amendment
rights. During the course of the bench conference, the prosecutor
withdrew his question.
Presuming defendant's objection properly preserved for review
a challenge to the prior questions and answers, it is not apparentthat the State was commenting on post-Miranda silence when the
testimony is reviewed in context. Defendant testified on direct
examination he told Officer Graham prior to being taken into
custody someone had tried to kill him and that he had to shoot. On
cross-examination, the State pointed out that Officer Graham had
testified that defendant had never mentioned anyone was trying to
kill him. The State asked why Deputy Graham would lie on the
stand. Defendant claimed that Graham was lying at the request of
a third party. In following up on this contention, the State then
asked [w]hen was the first time that you ever told the story that
you told in the last proceedings, referring to the claim of self-
defense. Defendant did not claim he had first asserted self
defense to Deputy Graham, but rather testified he had first told
the story to his attorney the day after the shooting. As his
counsel was objecting, defendant apparently realized what question
was being asked and attempted to testify, first I did tell, and
then again, I did.
Defendant has failed to show any error occurred. If the
questioning related to defendant's conversation with Deputy Graham
on the day of the shooting, post-Miranda silence was not
implicated. Defense counsel failed to object to the initial
questions and any later objection regarding the State's initial
questions was not preserved for appellate review. Regarding the
final question asked by the State since that question was withdrawn
and defendant made no further objections or motions to thesequestions, there is no error to review. This assignment of error
B. Closing Argument
 Defendant argues the trial court erred by failing to
intervene during certain portions of the State's closing argument
ex mero motu. Defendant asserts the State improperly referred to
[defendant's] exercise of the right to remain silent and was
asking the jury to discount [defendant's] testimony. Our review
of the transcript does not support this assertion. To the
contrary, the State was plainly referring to defendant's brother's,
testimony and defendant's girlfriend's failure to support
defendant's version of the facts.
The State stressed in its cross-examination of defendant's
brother that he did not tell the police that defendant had acted in
Q. Did you ever tell the police officers the
story that you've told in here today?
A. No, sir, nobody never asked me either.
Q. Your brother was in jail after he was
charged, is that right?
A. Yes, sir.
Q. Was it because that you had to have time
in order to get your story straight and that's
the reason that you told no police officer
within that 30 days or any time thereafter the
story that you've told in here today?
A. It was just nobody never asked, sir.
. . . .
Q. But you were asked, sir, to tell us what
A. You asked me, sir, if I wanted to say
Q. And you said no.
A. I said no, sir.
Q. That was your opportunity. Someone did
ask you to tell what you saw.
A. Well _
Q. And you refused?
A. There was another opportunity, too, sir.
The State later called the detective in charge of the
investigation who testified that he went to see Michael Shane
Herndon and defendant's girlfriend and unsuccessfully attempted to
obtain a statement from either of them on the day of defendant's
During its closing argument, the State first pointed out that
defendant's girlfriend, Dail, was an eye witness to this killing;
and yet, [she] hasn't said a word. . . . Why is that? Then, the
Prior to testifying, Michael Shane Herndon
says not one word to the police about self-
defense. Why not? Do you really think that
if they thought this was a self-defense case,
you couldn't have shut them up. They'd been
down at the police station, I want to give a
statement, I want to give a statement. But
they didn't do it. They didn't say, Hey,
look, you know, my brother's not guilty, or
My boyfriend's not guilty. It was self-
defense. When was it that Shane Hunt gave
his statement telling what he saw? The very
day. That afternoon. Because he didn't have
to have time to make up a defense or make up
Defendant's challenge to the State's closing argument immediately
follows this commentary on defendant's brother's and Dail's failure
to tell the police that defendant acted in self-defense:
Now, the defendant gets the evidence that the
State has. Have to give them everything we've
got. He waits and tailors his testimony to
what the evidence is. And it comes down to
whether you believe Shane Hunt, or whether you
now believe the defendant.
In context, this portion of the closing argument does not
necessarily refer to any post-Miranda silence by defendant, but to
the refusal of some eyewitnesses and the willingness of another to
give statements to the investigators on the day of the shooting.
The subsequent portion challenged by defendant the State asked
the jury to:
consider, when you're considering that
evidence, when these stories of what happened,
when those came out, the timing of when they
came out, and that should play a large role in
you deciding what weight that you're going to
give someone's testimony. Decide when it was
the people said Oh, this is what happened
because that, ladies and gentlemen, says a lot
about who's telling you the truth.
This closing argument is supported by the cross-examination of
defendant's brother, the direct examination of the investigating
detective, and the earlier argument regarding defendant's brother
and Dail. In the context of the closing arguments, these
statements do not necessarily refer to defendant's post-Miranda
silence. The trial court did not err in failing to intervene in
the closing argument ex mero motu. This assignment of error is
IV. Sufficiency of the Evidence: Voluntary Manslaughter
 Defendant argues the trial court erred in instructing the
jury on voluntary manslaughter because the evidence supported only
one of two verdicts: guilty of first-degree murder or not guilty
of any crime. We disagree.
The trial court instructed the jury on first-degree murder,
second degree murder, voluntary manslaughter, self-defense, and
defense of others. The verdict sheet gave the jury the choice of
finding defendant guilty of first-degree murder, second degree
murder, voluntary manslaughter, or not guilty.
Defense counsel failed to object to the submission of the
voluntary manslaughter instruction. Our review is limited to plain
error. State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378
(1983). In deciding whether a defect in the jury instruction
constitutes 'plain error,' the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt. Id. at 661, 300
S.E.2d at 378-79.
Defendant argues the submission of a voluntary manslaughter
instruction to the jury had a probable impact on the jury's finding
of guilt because the submission of a lesser included offense in
the absence of substantial evidence to support the lesser verdict,
invites jurors to disregard their oaths and to reach verdicts by
compromise. State v. Arnold, 98 N.C. App. 518, 530, 392 S.E.2d
140, 148 (1990). We disagree.
Voluntary manslaughter is the unlawful killing of a human
being without malice, premeditation or deliberation. State v.Rummage, 280 N.C. 51, 55, 185 S.E.2d 221, 224 (1971) (citations
Generally voluntary manslaughter occurs when
one kills intentionally but does so in the
heat of passion suddenly aroused by adequate
provocation or in the exercise of self-defense
where excessive force under the circumstances
is employed or where the defendant is the
aggressor bringing on the affray. Although a
killing under these circumstances is both
unlawful and intentional, the circumstances
themselves are said to displace malice and to
reduce the offense from murder to
State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978)
(emphasis supplied) (citations omitted).
Here, defendant's own evidence tends to show the elements of
imperfect self-defense. Defendant and defendant's brother
testified the victim pointed a gun at defendant and attempted to
fire. The victim then struck defendant on the head with the gun.
After defendant retreated to his vehicle, defendant and defendant's
brother testified the victim walked towards defendant's vehicle and
raised his gun. Defendant's brother remarked, He's getting ready
Dr. Johnson testified the victim received five gunshot wounds,
three to the back, one to the buttocks, and one to the front of his
right leg. Defendant testified he did not know where he shot the
victim and did not see the victim after he shot. Substantial
evidence was presented from which a rational trier of fact could
find defendant employed excessive force in shooting the victim five
times with three shots striking the victim in the back and buttocks
while acting in self-defense. Id. Based upon the evidence presented, the trial court's
submission of a voluntary manslaughter instruction to the jury was
not plain or prejudicial error. See State v. Walker, 22 N.C. App.
22, 23, 205 S.E.2d 328, 329-30 (1974) (evidence sufficient to
support a verdict of voluntary manslaughter where the victim called
the defendant a name and reached for a gun and the defendant
grabbed the gun first and shot the victim) This assignment of
error is overruled.
V. Aggressor Instruction
 Defendant argues the trial court also committed plain
error in giving the jury an aggressor instruction where an earlier
jury previously determined defendant not to be the aggressor. We
During jury deliberations at defendant's first trial, the jury
sent a note to the judge that stated, We came to the agreement
that he was not the aggressor. Chad did not go there to kill
Locklear. We have 9 not guilty [and] 3 manslauter (sic) . . . .
The jury at defendant's first trial failed to reach a unanimous
verdict and the trial court declared a mistrial.
Defendant contends that, once a jury has conclusively
determined the existence or nonexistence of a fact, the [S]tate is
collaterally estopped under the Double Jeopardy Clause from
relitigating that same issue in a second criminal proceeding.
State v. Carter, 357 N.C. 345, 355, 584 S.E.2d 792, 800 (2003)
(citation omitted). In State v. Warren, our Supreme Court stated,
'Collateral estoppel' means that once an issue of ultimate facthas been determined by a valid and final judgment, that issue may
not be relitigated by the same parties in a subsequent action.
313 N.C. 254, 264, 328 S.E.2d 256, 263 (1985). Defendant has the
burden of demonstrating that the issue he seeks to foreclose from
relitigation was actually decided in the previous proceeding.
Carter, 357 N.C. at 355-56, 584 S.E.2d at 800.
In State v. Booker, the foreman of the jury during the
defendant's first trial sent a note to the trial judge which stated
that the jury was deadlocked seven to five in favor of a verdict of
guilty of second degree murder. 306 N.C. 302, 304, 293 S.E.2d 78,
79 (1982). Our Supreme Court held that the jury did not return a
final verdict. Id. at 307, 293 S.E.2d at 81; see N.C. Gen. Stat.
§ 15A-1237(a) (The verdict must be in writing, signed by the
foreman, and made a part of the record of the case.); see also
State v. Mays, 158 N.C. App. 563, 575-76, 582 S.E.2d 360, 368
(2003) (A jury's note in the first trial stating we can
unanimously agree that minimally the defendant is guilty of 2nd
degree murder was not binding on the second trial.)
Here, the doctrine of collateral estoppel does not apply. No
unanimous verdict was reached by the jury whether or not defendant
was the aggressor. Id. The note from the prior jury demonstrated
a moment in time during the jury deliberations and was not a final
verdict for collateral estoppel to apply or jeopardy to attach.
This assignment of error is overruled.
Defendant failed to show the State's cross-examination and
closing argument improperly commented upon and violated his right
to remain silent under the Fifth Amendment. Defendant failed to
show the State's cross-examination and closing argument violated
his right to remain silent.
Sufficient evidence was presented to support the jury
instruction on voluntary manslaughter. The trial court did not
commit plain error in submitting voluntary manslaughter or an
aggressor instruction to the jury to warrant a new trial.
Defendant received a fair trial free from prejudicial or plain
errors he assigned and argued.
Judges HUDSON and GEER concur.
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