State v. Shuler, ___ N.C. ___, 2021-NCSC-89 (Aug. 13, 2021)

The defendant was charged with felony trafficking in methamphetamine and misdemeanor simple possession of marijuana. Prior to trial, the defendant filed a notice of her intent to rely upon the affirmative defense of duress. At trial, the detective who was present at the scene testified for the State during its case-in-chief. Over defense counsel’s objection, the State asked the detective if the defendant made “any statements” about another person when she handed over the substances in her possession, to which the detective responded in the negative.

The defense counsel asked for the court to excuse the jury and moved for a mistrial arguing that the State’s questions had “solicited an answer highlighting [the defendant’s] silence at the scene.” Slip op. at ¶ 6. After conducting a voir dire to determine the admissibility of the detective’s testimony, the trial court ultimately allowed the State to ask the question again when the jury returned. After the State’s case-in chief, the defendant took the witness stand to testify in her own defense. At the close of all the evidence, the trial court instructed the jury on the defense of duress, and the jury ultimately found the defendant guilty of both charges. 

On appeal, the Court of Appeals unanimously found no error in the jury’s verdicts or in the judgment, concluding that because defendant gave notice of her intent to assert the affirmative defense of duress before she testified, the trial court did not err in admitting the detective’s testimony of the defendant’s silence during the State’s case-in-chief.

The Supreme Court granted review to determine whether the Court of Appeals erred by holding that a defendant who exercises their Fifth Amendment right to silence forfeits that right if they give notice of intent to offer an affirmative defense. The Court held that when the defendant gave pre-trial notice of her intent to invoke an affirmative defense under statute, she did not give up her Fifth Amendment right to remain silent or her Fifth Amendment right to not testify, and the State was not permitted to offer evidence to impeach her credibility when she had not testified. Here, at the time the State elicited the impeachment testimony from the detective, the defendant had not testified and retained her Fifth Amendment right not to do so. Thus, the Court held it was error to admit the detective’s testimony into evidence.