State v. Gilbert

• Court: Court of Appeals of North Carolina
• Decided: July 2, 2025
• Docket: 25-32
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-32

Filed 2 July 2025

Guilford County, Nos. 22CRS374014-400, 22CRS374008-400, 23CRS026280-400

STATE OF NORTH CAROLINA

v.

QUINTERIUS JAMAL GILBERT

Appeal by Defendant from judgments entered 17 April 2024 by Judge Michael

D. Duncan in Guilford County Superior Court. Heard in the Court of Appeals 11 June

2025.

Attorney General Jeff Jackson, by Assistant Attorney General Daniel J. Burke, for the State-Appellee.

Joseph E. Gerber for Defendant-Appellant.

COLLINS, Judge.

Defendant Quinterius Jamal Gilbert appeals from judgments entered upon

jury verdicts of guilty of various crimes related to a break in and upon his guilty plea

to having attained habitual felon status. Defendant argues that the trial court

prejudicially erred by failing to intervene ex mero motu during the State’s closing

argument when it referenced Defendant’s decision not to testify. After careful

consideration, we find no prejudicial error. STATE V. GILBERT

Opinion of the Court

I. Background

Defendant was indicted in April 2023 for felony breaking and entering, felony

larceny after breaking and entering, and obtaining property by false pretenses.

Defendant was subsequently indicted as a habitual felon. Defendant’s case came on

for trial in March 2024. The evidence at trial tended to show the following:

The Troncoso-Ortiz family’s home in High Point, North Carolina was broken

into on 8 December 2022. Mr. Troncoso-Ortiz reported seven wristwatches and a

container of loose coins missing and gave the police a description of the watches. The

next day, Defendant showed his identification to the manager of Cash American

Pawn in High Point and sold two watches to the pawn shop. Law enforcement

accessed the pawn shop’s records and put a hold on the watches sold by Defendant

because they matched the description of the stolen watches. Mr. Troncoso-Ortiz

subsequently identified the watches as his. Defendant attempted to sell additional

watches to the pawn shop on 12 December 2022, but the pawn shop refused to

purchase them.

After deliberating for thirty minutes, the jury found Defendant guilty of all

charges. Defendant pled guilty to having attained habitual felon status. The trial

court sentenced Defendant to an active term of 96-128 months of imprisonment with

a credit of 424 days served. Defendant gave notice of appeal in open court.

II. Discussion

Defendant’s sole argument on appeal is that the trial court prejudicially erred

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by failing to intervene ex mero motu during the State’s closing argument when the

State referenced Defendant’s decision not to testify.

“The standard of review for assessing alleged improper closing arguments that

fail[ed] to provoke timely objection from opposing counsel is whether the remarks

were so grossly improper that the trial court committed reversible error by failing to

intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133 (2002) (italics and citation

omitted). This Court must determine “(1) whether the argument was improper; and

if so, (2) whether the argument was so grossly improper as to impede the defendant’s

right to a fair trial.” State v. Huey, 370 N.C. 174, 179 (2017). “In determining whether

the statement was grossly improper, we must examine the context in which it was

given and the circumstances to which it refers.” State v. Trull, 349 N.C. 428, 451

(1998) (citations omitted).

A criminal defendant cannot be compelled to testify, and the State’s reference

to or comment on his decision not to testify violates the defendant’s right to remain

silent under the Fifth Amendment of the United States Constitution. State v. Grant,

293 N.C. App. 457, 458 (2024) (citing Griffin v. California, 380 U.S. 609, 615 (1965)).

Likewise, the North Carolina Constitution provides that a criminal defendant cannot

“be compelled to give self-incriminating evidence.” N.C. Const. art. I, § 23.

Additionally, our North Carolina General Statutes provide that a criminal defendant

shall not be compelled to testify or “answer any question tending to criminate

himself.” N.C. Gen. Stat. § 8-54 (2024). Because a criminal defendant’s right to

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remain silent is constitutionally and statutorily protected, “a prosecution’s argument

which clearly suggests that a defendant has failed to testify is error.” State v. Reid,

334 N.C. 551, 555 (1993) (citation omitted).

However, “a comment implicating a defendant’s right to remain silent,

although erroneous, is not invariably prejudicial.” State v. Ward, 354 N.C. 231, 251

(2001) (citation omitted). “The error may be cured by a withdrawal of the remark or

by a statement from the court that it was improper, followed by an instruction to the

jury not to consider the failure of the accused to offer himself as a witness.” Trull,

349 N.C. at 452-53 (brackets and citation omitted). The trial court’s “inclusion in the

jury charge of an instruction on a defendant’s right not to testify” alone is insufficient

to cure the State’s error. Reid, 334 N.C. at 556.

In this case, Defendant did not offer evidence and exercised his right not to

testify. The State made the following remark about Defendant’s decision during its

closing argument, without objection:

You don’t have any other evidence to say otherwise. Now, he doesn’t have to testify, but there’s no other evidence to say otherwise as to how he got those watches honestly. . . .

(emphasis added). This specific and direct statement made during closing argument,

that Defendant “doesn’t have to testify,” violated Defendant’s constitutional and

statutory rights. Reid, 334 N.C. at 555. The error was not cured because the State

did not withdraw the remark, nor did the trial court indicate that the remark was

improper or instruct the jury not to consider “the failure of the accused to offer himself

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as a witness.” Trull, 349 N.C. at 452-53 (citation omitted). Although the trial court

included in the jury charge an instruction on a defendant’s right not to testify, this

instruction alone was not sufficient to cure the improper remark. Reid, 334 N.C. at

556.

Notwithstanding this error, Defendant is not entitled to a new trial because he

has failed to show the error “was so grossly improper as to impede [his] right to a fair

trial.” Huey, 370 N.C. at 179. The State presented substantial uncontradicted

evidence of Defendant’s guilt. Law enforcement discovered that Defendant had

presented identification and sold two watches to a pawn shop in High Point the day

after seven watches were reported stolen from the Troncoso-Ortiz family’s High Point

home. The watches Defendant sold matched the description of the stolen watches

given by Mr. Troncoso-Ortiz, and Mr. Troncoso-Ortiz subsequently identified the

watches as belonging to him. Defendant returned to the same pawn shop a few days

later to sell additional watches. The State’s remark and the trial court’s lack of

curative action, while error, was not so grossly improper as to impede Defendant’s

right to a fair trial in light of the overwhelming and uncontradicted evidence of

Defendant’s guilt.

III. Conclusion

For the reasons above, the trial court did not prejudicially err.

NO PREJUDICIAL ERROR.

Judge ZACHARY concurs.

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Judge TYSON concurs by separate opinion.

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TYSON, Judge, concurring.

IV. Background

This case addresses a Defendant’s right to not answer questions or make

statements, to remain silent upon the advice of counsel or otherwise, to not testify at

trial, and, more specifically, for the State not to refer to, comment on, nor to use or

challenge Defendant’s silence, or his assertion or retention of those rights, against

him at trial. We all agree the State’s unlawful comments on Defendant’s decision to

exercise his right to remain silent violated Defendant’s rights. This Court’s patience

and tolerance for the State’s unlawful conduct is thin. Despite the clear prejudice

Defendant demonstrated, I fully concur in this Court’s ultimate decision to not award

Defendant a new trial given the overwhelming evidence of guilt.

V. Preservation

North Carolina’s appellate courts are “mindful of the reluctance of counsel to

interrupt his adversary and object during the course of closing argument for fear of

incurring jury disfavor.” State v. Jones, 355 N.C. 117, 129, 558 S.E.2d 97, 105 (2002).

Because of this reluctance, “it is incumbent on the trial court to monitor vigilantly

the course of such arguments, to intervene as warranted, to entertain objections, and

to impose any remedies pertaining to those objections.” Id. (emphasis supplied).

If counsel or the State makes improper remarks during closing argument, the

trial court should implement remedies, such as “requiring counsel to retract portions

of an argument deemed improper or issuing instructions to the jury to disregard such STATE V. GILBERT

TYSON, J., concurring

arguments.” Id.

“In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make if the specific grounds were

not apparent from the context.” N.C. R. App. P. 10(a)(1). Defendant’s counsel timely

did so here prior to the jury beginning deliberations, and his argument is properly

preserved. See id.; Jones, 355 N.C. at 129, 558 S.E.2d at 105; State v. Earley, __ N.C.

App. __, __, 914 S.E.2d 79, 94-95 (2025) (Tyson, J., dissenting).

VI. Closing Argument Remarks

A. Standard of Review

A prosecutor’s closing argument must avoid appeals to passion or prejudice.

Jones, 355 N.C. at 135, 558 S.E.2d at 108. “[F]or an inappropriate prosecutorial

comment to justify a new trial, it must be sufficiently grave that it is prejudicial

error.” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992) (citation and

internal quotation marks omitted). “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) (2023).

B. Analysis

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The Fifth and Fourteenth Amendments of the Constitution of the United States

preserve and protect a criminal defendant’s right to remain silent and not be

compelled to testify or offer evidence. U.S. Const. amend. V; XIV. North Carolina’s

Constitution also provides a criminal defendant cannot “be compelled to give self-

incriminating evidence.” N.C. Const. art. I, § 23. Our General Assembly has

implemented these Constitutional provisions by statutorily mandating a criminal

defendant shall not be compelled to testify or “answer any question tending to

criminate himself.” N.C. Gen. Stat. § 8-54 (2023).

“[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). “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.” Id. (emphasis supplied).

Our General Statutes also mandate the State’s limits of permissible

commentary during a prosecutor’s closing argument:

During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.

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N.C. Gen. Stat. § 15A-1230(a) (2023) (emphasis supplied).

“[A] prosecution’s argument which clearly suggests that a defendant has failed

to testify is error.” State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993).

Our Supreme Court has further held:

[C]ounsel may not, by argument or cross-examination, place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs, and personal opinions not supported by the evidence. A prosecutor must present the State’s case vigorously while at the same time guarding against statements which might prejudice the defendant’s right to a fair trial.

State v. Hill, 311 N.C. 465, 473, 319 S.E.2d 163, 168 (1984) (citations and internal

quotation marks omitted) (emphasis supplied).

The Supreme Court of the United States over 90 years ago warned prosecutors:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1324 (1935). See also State

v. Smith, 279 N.C. 163, 167, 181 S.E.2d 458, 460 (1971).

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Our Supreme Court explained: “The prosecuting attorney should use every

honorable means to secure a conviction, but it is his duty to exercise proper restraint

so as to avoid misconduct, unfair methods or overzealous partisanship which would

result in taking unfair advantage of the accused.” State v. Holmes, 296 N.C. 47, 50,

249 S.E.2d 380, 382 (1978).

This Court has also repeatedly warned prosecutors about impermissible

statements during closing arguments and cautioned them, like Daedalus warned

Icarus, not to “fly too close to the sun”:

Notwithstanding our conclusions that Defendant has failed to object or to show prejudice in the prosecutor’s statements and demonstrations to warrant a new trial, we find the prosecutor’s words and actions troublesome. Without hesitation, the prosecutor flew exceedingly close to the sun during his closing argument. Only because of the unique circumstances of this case has he returned with wings intact. See BERGEN EVANS, DICTIONARY OF MYTHOLOGY 62-63 (Centennial Press 1970). We emphasize, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.” Rev. R. Prof. Conduct N.C. St. B. 3.8 (Special Responsibilities of a Prosecutor) cmt. [1] (2015).

State v. Martinez, 251 N.C. App. 284, 296, 795 S.E.2d 386, 394 (2016).

Defendant correctly argues the prosecutor made impermissible comments

during closing argument. Our Supreme Court stated in Hembree and Reid, with or

without the benefit of counsel’s recorded objection, the “prosecutor’s statements to

this effect were grossly improper, and the trial court erred by failing to intervene ex

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mero motu.” State v. Hembree, 368 N.C. 2, 20, 770 S.E.2d 77, 90 (2015); Reid, 334

N.C. at 556, 434 S.E.2d at 197. The trial court’s “inclusion in the jury charge of an

instruction on a defendant’s right not to testify” alone is insufficient to cure the

State’s error. Reid, 334 N.C. at 556, 434 S.E.2d at 197.

“The error may be cured by a withdrawal of the remark or by a statement from

the court that it was improper, followed by an instruction to the jury not to consider

the failure of the accused to offer himself as a witness.” State v. Trull, 349 N.C. 428,

452-53, 509 S.E.2d 178, 194 (1998) (brackets and citation omitted).

As is held in this Court’s opinion, the State presented substantial

uncontradicted evidence of Defendant’s guilt beyond a reasonable doubt. On appeal,

he has failed to show the State’s error, while prejudicial, “was so grossly improper as

to impede [his] right to a fair trial.” State v. Huey, 370 N.C. 174, 179, 804 S.E.2d 464,

469 (2017).