State v. Earley, COA24-386, ___ N.C. App. ___ (Mar. 19, 2025)

In this Union County case, defendant appealed her convictions for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, arguing error in (1) allowing the State to repeatedly question defendant about her failure to make a statement to law enforcement, and (2) allowing the State to reference her silence during closing argument. The Court of Appeals majority found no plain error.

The charges against defendant arose from her shooting her husband in the bathroom of their home in January 2022. Defendant fled the home but later turned herself in, declining to give a statement but telling officers she had no injuries. At trial, a prosecutor asked one of the law enforcement officers if defendant was given a chance to make a statement, and defense counsel objected. The objection was overruled, and the officer confirmed he did give defendant a chance to make a statement. Later questioning covered the officer’s attempts to speak to defendant on the phone about her version of events, which defense counsel did not object to at the time. Defendant was cross-examined about not giving a statement, and defense counsel again failed to timely object. Defendant’s version of events presented a self-defense claim, which the prosecutor called “smoke and mirrors” during closing argument. Defense counsel objected to this statement after the jury had left for deliberations, but the trial court did not rule on the objection, and defendant was subsequently convicted.

The Court of Appeals first established that defendant did not properly preserve her arguments for appeal, meaning the review would be plain error for (1) and grossly improper for (2). Taking up (1), the court disagreed that the questioning rose to the level of plain error, as “[t]he State presented overwhelming evidence from which a jury could conclude that the State’s version, rather than Defendant’s version, accurately explained the events.” Slip Op. at 20. This included defendant’s lack of injuries and the crime scene evidence of the blood, broken glass, and location of bullets in the walls, which did not support defendant’s narrative of a struggle and firing in self-defense. Moving to (2), the court disagreed that the prosecutor’s statements were grossly improper, as “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.” Id. at 25.

Judge Tyson provided a lengthy dissent, arguing “[t]he State repeatedly violated Defendant’s assertion of [her] rights and belittled her silence and prejudiced her before the jury.” Id. at 28.