IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-288
Filed: 4 February 2020
Cabarrus County, No. 17 CRS 052061-63, 18 CRS 000550
STATE OF NORTH CAROLINA,
v.
BRANDON SCOTT GOINS, Defendant.
Appeal by Defendant from judgments entered 21 September 2018 by Judge
Christopher W. Bragg in Cabarrus County Superior Court. Heard in the Court of
Appeals 5 December 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Catherine F. Jordan, for the State.
Joseph P. Lattimore for defendant-appellant.
MURPHY, Judge.
Criminal defendants have an absolute constitutional right to plead not guilty
and be tried by a jury of their peers. U.S. Const. amend. VI; N.C. Const. art. I, § 24.
Our caselaw is unequivocal that the right to enter a plea of not guilty encompasses
the right to be free from condemnation in front of a jury for making that choice. A
defendant’s right to a fair trial is abridged by a prosecutor’s complaints before a jury
during closing argument about the defendant’s decision to plead not guilty, and that
is exactly what happened here. During her closing argument the prosecutor STATE V. GOINS
Opinion of the Court
condemned Defendant, Brandon Scott Goins, for pleading not guilty and in doing so
violated Defendant’s right to receive a fair trial. We order a new trial.
BACKGROUND
This appeal concerns a violation of Defendant’s constitutional right to receive
a fair trial. More specifically, our resolution of the appeal is exclusively focused on
the prosecutor’s closing argument, wherein the alleged violation occurred. Defendant
was convicted by a jury of two counts of assault with a deadly weapon on a law
enforcement officer, one count of possession of a firearm by a felon, and one count of
attempted first-degree murder, and sentenced to consecutive presumptive prison
terms of 33 to 52 months, 17 to 30 months, 207 to 261 months, and 33 to 52 months.
As our analysis is solely focused on the content of the prosecutor’s closing argument,
we include the relevant facts in our analysis.
ANALYSIS
A. Closing Argument
“The standard of review when a defendant fails to object at trial [to an allegedly
improper closing argument] is whether the argument complained of was so grossly
improper that the trial court erred in failing to intervene ex mero motu.” State v.
Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998). “To merit a new trial, ‘the
prosecutor’s remarks must have perverted or contaminated the trial such that they
rendered the proceedings fundamentally unfair.’” State v. Phillips, 365 N.C. 103, 136,
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711 S.E.2d 122, 146 (2011) (quoting State v. Mann, 355 N.C. 294, 307-08, 560 S.E.2d
776, 785 (2002)).
1. Defendant’s Decision to Plead Not Guilty
“[A] criminal defendant possesses an absolute constitutional right to plead not
guilty and be tried before a jury, and should not and [can] not be punished for
exercising that right.” State v. Thompson, 118 N.C. App. 33, 41, 454 S.E.2d 271, 276
(1995) (emphasis in original) (internal quotation marks omitted). “[T]here are no
special circumstances that would justify use of a constitutional privilege to discredit
or convict a person who asserts it. The value of constitutional privileges is largely
destroyed if persons can be penalized for relying on them.” State v. Ladd, 308 N.C.
272, 284, 302 S.E.2d 164, 172 (1983) (internal quotation marks omitted). Accordingly,
“[r]eference by the State to a defendant’s failure to plead guilty violates his
constitutional right to a jury trial.” State v. Larry, 345 N.C. 497, 524, 481 S.E.2d 907,
923 (1997). Here, we are presented with a closing argument that rendered the
proceedings fundamentally unfair and requires a new trial.
During closing argument, the State repeatedly brought up Defendant’s failure
to plead guilty: “Might ask why would [Defendant] plead not guilty? I contend to you
that the defendant is just continuing to do what he’s done all along, refuse to take
responsibility for any of his actions. That’s what he does. He believes the rules do
not apply to him.” Later, the State returned to Defendant’s plea, stating,
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“[Defendant’s] not taking responsibility today. There’s nothing magical about a not
guilty plea to attempted murder. He’s got to admit to all the other charges. You see
them all on video. The only thing that’s not on video is what’s in his head. He also
knows that those other charges carry less time. There’s the magic.”
“No other right of the individual has been so zealously guarded over the years
and so deeply embedded in our system of jurisprudence as an accused’s right to a jury
trial.” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). “[P]rosecutorial
argument complaining a criminal defendant has failed to plead guilty and thereby
put the State to its burden of proof is no less impermissible than an argument
commenting upon a defendant's failure to testify.” Thompson, 118 N.C. App. at 41,
454 S.E.2d at 276. Here, the prosecutor’s closing argument complaining about
Defendant’s decision to plead not guilty violates Defendant’s right to receive a fair
trial and necessitates a new trial.
2. Argument Regarding a Previous Appellate Decision
In addition to the argument regarding Defendant’s decision to plead not guilty,
the prosecutor’s closing argument was impermissible for a second reason. “It is not
permissible argument for counsel to read, or otherwise state, the facts of another case,
together with the decision therein, as premises leading to the conclusion that the jury
should return a verdict favorable to his [side] in the case on trial.” State v. Simmons,
205 N.C. App. 509, 514, 698 S.E.2d 95, 100 (2010). Such impropriety is only grounds
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for a new trial where the prosecutor’s use of the other case is prejudicial, i.e. where
“the prosecutor’s improper argument led the jury to believe that it was compelled to
return a verdict of guilty in [the immediate] case . . . .” Id. at 517, 698 S.E.2d at 102.
Here, the prosecutor acted impermissibly when she stated: “I told you I was
going to mention a North Carolina Court of Appeals case, it’s State versus
Haynesworth . . . .” After describing the facts of Haynesworth and the trial court’s
finding that, there, the defendant acted with premeditation and deliberation, the
prosecutor offered, “I raise that [case] because I contend [it] is much weaker than
ours.” We need not decide whether this part of the prosecutor’s closing argument was
prejudicial such that it requires a new trial—our Constitution requires a new trial
solely based on the prosecutor’s argument regarding Defendant’s not guilty plea—but
we take this opportunity to unequivocally restate that such an argument has no place
in a closing argument. The prosecutor’s decision to flaunt this well-settled rule was
improper.
B. Defendant’s Other Arguments
In addition to his argument regarding the State’s closing argument, Defendant
asserts two arguments we need not address on appeal. First, he argues the trial court
committed plain error by failing to instruct the jury on the lesser-included offense of
attempted voluntary manslaughter, and, second, he argues the trial court committed
plain error by permitting Lieutenant Smith to comment on Defendant’s guilt or
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innocence and interpret video footage to corroborate witness testimony. Because our
analysis of Defendant’s other argument requires a new trial, we need not reach these
arguments. See, e.g., State v. Long, 196 N.C. App. 22, 41, 674 S.E.2d 696, 707 (2009)
(“As we are granting defendant’s request for a new trial, and the other issues he has
raised may not be repeated in a new trial, we will not address his other [arguments
on appeal].”).
CONCLUSION
The prosecutor in this case violated Defendant’s constitutional right to receive
a fair trial when she improperly commented on his decision to plead not guilty.
NEW TRIAL.
Judge YOUNG concurs; Judge TYSON dissents.
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TYSON, Judge, dissenting.
The majority’s opinion grants Defendant a new trial based upon unobjected to
statements in the prosecutor’s closing argument. Without objection, Defendant could
not have presented any constitutional argument to the trial court that his right to a
fair trial was violated. Defendant’s failure to assert this argument waives that
argument on appeal. N.C. R. App. P. 10(b)(1).
Any review of the prosecutor’s closing argument is limited to N.C. Gen. Stat. §
15A-1230 (2019). Defendant has not shown prejudicial error in the jury’s verdict or
the judgment entered thereon to be awarded a new trial. I respectfully dissent.
I. Background
Brandon Scott Goins (“Defendant”) was placed on probation for felonious
trafficking in opium or heroin and absconded supervision. Law enforcement officers
learned Defendant was staying at a Kannapolis hotel. Kannapolis Police Detective
Trey Hinton and other officers travelled to the hotel to arrest Defendant. Defendant
was armed and engaged in a shoot-out with Detective Hinton, who fired his service
weapon between twelve to fourteen times. Thirteen shell casings were recovered from
the hotel’s hallway.
The State’s evidence tended to show Defendant fired his gun four times during
the encounter. Defendant was injured during the shoot-out and subsequently
apprehended. At trial during Detective Hinton’s testimony, the State played a video
of the incident recorded by the hotel’s security system for the jury. The State also STATE V. GOINS
TYSON, J., dissenting.
offered the testimony of Lieutenant Justin Smith who narrated the hotel video before
the jury.
The State presented other evidence tending to show that shortly before the day
of the shooting, Defendant had shown his grandmother and uncle a gun, had
purchased ammunition for the gun and told them that the bullets would penetrate a
bullet proof vest. The State also introduced testimony that Defendant told his uncle
that the gun had “cop-killer” bullets.
Defendant was convicted by a jury of two counts of assault with a deadly
weapon on a law enforcement officer, one count of possession of a firearm by a felon,
and one count of attempted first-degree murder. Defendant appealed.
II. Jurisdiction
This Court possess jurisdiction over Defendant’s appeal as a matter of right
pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2019).
III. Issues
Defendant argues the trial court committed plain error by (1) permitting
Lieutenant Smith to comment on Defendant’s purported guilt or innocence and to
interpret video footage to corroborate witness testimony and (2) failing to instruct the
jury on the lesser-included offense of attempted voluntary manslaughter. Defendant
also argues the prosecutor’s closing argument to the jury was improper.
IV. Standard of Review
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The Supreme Court of North Carolina has prohibited appellate review of and
dismissed unpreserved or waived issues, but allowed limited “review [of] unpreserved
issues for plain error when they involve either (1) errors in the judge’s instructions to
the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C.
580, 584, 467 S.E.2d 28, 31 (1996); N.C. R. App. P. 10(a)(4); see also State v. Goss, 361
N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d
58 (2008).
If the defendant has failed to object to the challenged evidence or instructions,
any appellate review is limited to plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d
375 (1983). “Under the plain error rule, defendant must convince this Court not only
that there was error, but that absent the error, the jury probably would have reached
a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). A
defendant must specifically and distinctly argue for plain error review. Id.
V. Analysis
A. Narration
Defendant argues Lieutenant Smith did not observe any of the incidents in the
hotel’s hallway and the trial court committed reversible error by allowing him to
“narrate” the tapes and state what the tapes showed. In State v. Buie, this Court
held it was error for the trial court to allow the police detective’s testimony about the
depiction of two poor quality surveillance videos. State v. Buie, 194 N.C. App. 725,
3 STATE V. GOINS
732, 671 S.E.2d 351, 355 (2009). “Rather than identifying a type of wound in a still
photograph, Detective Welborn offered his opinion, at length, about the events
depicted in the surveillance tapes, concluding that the video corroborated the female’s
testimony. . . . The testimony offered by Detective Welborn was not a shorthand
statement of facts, but rather an inadmissible lay opinion testimony that invaded the
province of the jury.” Id.
However, in Buie, the Court also held the error was not prejudicial to warrant
a new trial, given the amount of other overwhelming evidence of that defendant’s
guilt offered to the jury. Id.
Here, Defendant failed to object to Lieutenant Smith’s testimony. Under
limited plain error review and considering the overwhelming evidence of Defendant’s
guilt, Defendant cannot show prejudice to be awarded a new trial on this issue. See
id.
B. Lesser-Included Offenses
Defendant argues the trial court committed plain error by failing to instruct
the jury on the lesser-included offense of attempted voluntary manslaughter.
Defendant did not request an instruction on any lesser-included offense and
Defendant did not object to the proposed instructions at the charge conference.
Defendant “failed to object to the challenged instruction at trial, and thus, any error
4 STATE V. GOINS
must be reviewed under the plain error rule.” Jordan, 333 N.C. at 440, 426 S.E.2d at
697.
To support an instruction on attempted voluntary manslaughter, there must
be some evidence to support that Defendant acted in the heat of passion and without
malice. Defendant cites State v. McConnaughy, 66 N.C. App. 92, 95, 311 S.E.2d 26,
29 (1984), for the proposition that “[a]n actual threatened assault on the defendant
constitutes sufficient provocation to induce the heated state necessary” to reduce the
offense. Defendant argues the video shows so much smoke that it is possible
Detective Hinton fired first at Defendant.
“[A] defendant is not entitled to an instruction on a lesser included merely
because the jury could possible believe some of the State’s evidence, but not all of it.”
State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991). Defendant was not
entitled to an instruction on the lesser-included offense of attempted voluntary
manslaughter.
The State presented more than sufficient evidence that Defendant shot first at
Officer Hinton and had claimed his gun was loaded with “cop killer” bullets to
penetrate a bullet-proof vest. No evidence was presented of any heat of passion to
negate malice, premeditation and deliberation. Further, Defendant has not and
cannot show that any purported error was prejudicial under plain error review to
warrant a new trial. Defendant’s arguments are waived and properly dismissed.
5 STATE V. GOINS
C. Closing Arguments
1. Waiver of Constitutional Challenge
Rule of Appellate Procedure 10(b)(1) and long-standing and controlling
precedents foreclose Defendant from raising constitutional challenges for the first
time on appeal. See, e.g., State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985);
State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009); State v. Phillips, 365
N.C. 103, 135, 711 S.E.2d 122, 145 (2011).
The majority’s opinion misstates the conclusion and precedent in State v.
Phillips. In Phillips, as in the present case, the defendant did not preserve a
constitutional argument. Phillips, 365 N.C. at 135, 711 S.E.2d at 145. Our Supreme
Court analyzed the case in regard to a violation of N.C. Gen. Stat. § 15A-1230. Id.
The Supreme Court first recognized that since the defendant had not objected
to any of the prosecutor’s arguments below, then “no constitutional argument could
have been presented to the trial court.” Id. The Court next recognized a defendant’s
“failure to raise a constitutional issue at trial generally waives that issue for appeal.”
Id. The Court only proceeded to review the purported errors for a violation of N.C.
Gen. Stat. § 15A-1230, and not for any purported and unasserted constitutional claim
of error. Id.
2. Limitations on Argument to the Jury
N.C. Gen. Stat. § 15A-1230(a) provides that in closing arguments:
6 STATE V. GOINS
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.
This statute binds all trial counsel in criminal trials and compels compliance
therewith as officers of the court.
“Generally, ‘prosecutors are given wide latitude in the scope of their argument’
and may ‘argue to the jury the law, the facts in evidence, and all reasonable inferences
drawn therefrom.’” Goss, 361 N.C. at 626, 651 S.E.2d at 877 (quoting State v.
Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709-10 (1995), cert. denied, 516 U.S. 1148,
134 L. Ed. 2d 100 (1996)), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).
Our Supreme Court has stated, “a criminal defendant has a constitutional
right to plead not guilty and be tried by a jury. Reference by the State to a defendant’s
failure to plead guilty violates his constitutional right to a jury trial.” State v. Larry,
345 N.C. 497, 524, 481 S.E.2d 907, 923, (internal citations omitted), cert. denied, 522
U.S. 917, 139 L. Ed. 2d 234 (1997).
However, contrary to the conclusion of the majority’s opinion, presuming this
assertion has merit does not either ipse dixit or ipso facto end the inquiry and
analysis, it is merely the beginning. Defendant’s failure to object imposes an even
greater burden on him to show prejudice to be awarded a new trial in the face of
overwhelming evidence of his guilt.
7 STATE V. GOINS
“[W]hen defense counsel fails to object to the prosecutor’s improper argument
and the trial court fails to intervene, our standard of appellate review requires a two-
step analytical inquiry: (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, 804 S.E.2d 464, 469 (2017). Only where
this Court “finds both an improper argument and prejudice will this Court conclude
that the error merits appropriate relief.” Id. (emphasis supplied).
The Supreme Court of the United States held: “it is not enough that the
prosecutors’ remarks were undesirable or even universally condemned.” Darden v.
Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986) (citation and internal
quotation marks omitted). The “relevant question is whether the prosecutors’
comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. (citation and internal quotation marks omitted).
The prosecutor’s complaints about Defendant’s demand for a trial are improper
and satisfy the first prong of Huey. 370 N.C. at 179, 804 S.E.2d at 469. Counsel is
admonished for referring to or questioning Defendant’s exercise of his right to a trial
by jury.
Moving to the second prong, the inquiry is whether the prosecutor’s improper
statement “impede[s] the defendant’s right to a fair trial.” Id. Only where the
defendant demonstrates “prejudice will this Court conclude that the error merits
8 STATE V. GOINS
relief.” Id. Where overwhelming evidence of the defendant’s guilt exists, our
appellate courts “have not found statements that are improper [in and of themselves]
to amount to prejudice and reversible error.” Id. at 181, 804 S.E.2d at 470.
During her closing argument, the prosecutor recited the evidence presented
including Defendant avoiding his probation officer, possessing a gun as a convicted
felon, and pulling and firing a gun on Officer Hinton in the hallway of the hotel full
of people. She relayed the evidence offered that Defendant set up his shot and fired
at Officer Hinton.
The jury had heard testimony that Defendant had acquired “cop-killer” bullets,
and viewed a videotape showing him shoot at Officer Hinton. The State presented
overwhelming evidence of Defendant’s guilt. Defendant cannot show the prosecutor’s
improper statements overcome this evidence to “amount to prejudice and reversible
error.” Id.
3. N.C. Gen. Stat. § 7A-97
Defendant also argues the prosecutor’s closing argument violated N.C. Gen.
Stat. § 7A-97 (2019). In her closing argument, the prosecutor stated:
I told you I was going to mention a North Carolina Court of Appeals case, it’s State v. Haynesworth, and in that case an officer responded to just a disturbance call. And the suspect was unhappy that he was there, and so he decides he’s gonna fight the officer, and then he decides he’s gonna go for the officer’s gun. So while they’re struggling with each other, the defendant puts his hands on the officer's gun and shoots and it hits part of the officer’s hand. In that
9 STATE V. GOINS
case, the court found that, when the suspect grabbed the officer’s gun, he discharged it and struck the hand with the bullet, that was premeditation and deliberation. I raise that because I contend that case is much weaker than ours.
N.C. Gen. Stat.§ 7A-97 provides “[i]n jury trials the whole case as well of law
as of fact may be argued to the jury.” This rule
grants counsel the right to argue the law to the jury which includes the authority to read and comment on reported cases. There are, however, limitations on what portions of these cases counsel may relate. For instance, counsel may . . . not read the facts contained in a published opinion together with the result to imply that the jury in his case should return a favorable verdict for his client.
State v. Gardner, 316 N.C. 605, 611, 342 S.E.2d 872, 876 (1986) (citations omitted).
Here, the prosecutor’s attempt to analogize the facts along with the holding in
State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103, (2001), was improper. See
State v. Anthony, 354 N.C. 372, 430, 555 S.E.2d 557, 594 (2001) (holding the
“defendant’s attempt to read the facts from State v. Hamlette, 302 N.C. 490, 276
S.E.2d 338, along with the holding in that case for the purpose of urging the jury to
not find the especially heinous, atrocious, or cruel aggravating circumstance was
improper”).
However, and as in State v. Gardner, presuming the trial court’s failure to
intervene without any objection from Defendant was error, Defendant “must
nevertheless show that this error was prejudicial.” Gardner, 316 N.C. at 613, 342
S.E.2d at 877.
10 STATE V. GOINS
The statutory test for prejudicial error in matters not affecting asserted and
preserved constitutional rights is whether “there is a reasonable possibility that, had
the error in question not been committed, a different result would have been reached
at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443 (2019).
For reasons discussed in the unpreserved issues raised above and given the
overwhelming evidence of Defendant’s guilt and the prosecutor’s other proper
arguments, Defendant has failed to show he was so prejudiced to warrant a new trial.
See State v. Degraffenried, __ N.C. App. __, __, 821 S.E.2d 887, 890 (2018) (holding
where the evidence against the defendant was overwhelming, the defendant “failed
to show the prosecutor’s comments were so prejudicial to render [his] trial
fundamentally unfair”), review dismissed, __ N.C. __, 830 S.E.2d 835 (2019).
V. Conclusion
If a defendant or his counsel believes the State’s argument is improper, they
are obliged to speak and object to preserve the error for appellate review. “When [a]
defendant does not object to comments made by the prosecutor during closing
arguments, only an extreme impropriety on the part of the prosecutor will compel
this Court to hold that the trial judge abused his discretion in not recognizing and
correcting ex mero motu an argument that defense counsel apparently did not believe
was prejudicial when originally spoken.” State v. Richardson, 342 N.C. 772, 786, 467
S.E.2d 685, 693 (1996).
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The State’s evidence of Defendant’s guilt was overwhelming and unrefuted.
Defendant has failed to object and has not shown plain error in the trial court’s
permitting a witness to narrate the video footage to corroborate another witness’
testimony and failing to instruct the jury on the lesser-included offense of attempted
voluntary manslaughter.
While the prosecutor’s comments to the jury were arguably improper under the
statute, Defendant has failed to show the prosecutor’s comments were so prejudicial
to render Defendant’s trial fundamentally unfair to warrant a new trial, or in the
alternative, to now assert reversible error in any purported failure of the trial court
to intervene on its own in the absence of any objection. Id.
Defendant received a fair trial, free from preserved or prejudicial errors. I find
no prejudicial error in the jury’s verdicts or in the judgment entered thereon to award
a new trial. I respectfully dissent.