State v. McLean

• Court: Court of Appeals of North Carolina
• Decided: November 19, 2025
• Docket: 24-938
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-938

Filed 19 November 2025

Gaston County, No. 20CR058803-350

STATE OF NORTH CAROLINA

v.

VALENCIA MCLEAN

Appeal by Defendant from a judgment entered 28 November 2023 by Judge

David A. Phillips in Gaston County Superior Court. Heard in the Court of Appeals

27 August 2025.

Attorney General Jeff Jackson, by Special Deputy Attorney General Robert C. Ennis, for the State.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Samuel J. Ervin, IV, for the Defendant.

WOOD, Judge.

Valencia McLean (“Defendant”) appeals from judgment following a jury verdict

finding her guilty of second-degree murder. On appeal, Defendant contends the trial

court erred by (1) instructing the jury on the aggressor doctrine when discussing self-

defense; and (2) not intervening sua sponte during the State’s closing argument. After STATE V. MCLEAN

Opinion of the Court

careful review of the record, we conclude Defendant received a fair trial free from

error.

I. Factual and Procedural Background

In December 2016, Defendant met Willie Breeden (“Breeden”) online and by

January 2017 Breeden had moved into Defendant’s home with her and her son

Latrelle McLean (“Latrelle”). In January 2018, Defendant gave birth to the couple’s

daughter.

In April 2019, Defendant was shot in the foot with Breeden’s rifle. Defendant

told hospital staff “it was a clear accident” when Breeden was “showing her his AR-

15 and it accidentally discharged[.]” However, Breeden was arrested for felony

assault. Defendant posted Breeden’s bond, asked for the charges to be dismissed and

went with Breeden to pick up his rifle from the police station.

After the shooting incident, the Department of Social Services removed

Latrelle and his younger sister from the home and placed them in foster care based

on domestic violence concerns. However, in June 2020, Latrelle turned eighteen and

chose to return to his family’s home.

On the evening of 12 September 2020, Defendant and Breeden began arguing

about various interpersonal issues including Breeden’s concerns about Defendant’s

fidelity. Breeden eventually fell asleep on the floor, and Defendant removed

Breeden’s rifle from its case under the bed in their upstairs bedroom and hid it behind

the washing machine in the downstairs laundry room. At some point overnight or on

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the morning of 13 September 2020, something woke everyone up, Breeden “started

raising hell” and the argument between the couple became physical. Defendant

reported that Breeden struck her with a shower rod and pushed her head while she

pulled his hair and pushed him away. Things calmed down, Latrelle went back to

sleep, and Breeden again slept on the hallway floor. Defendant began making

breakfast. Sometime later Latrelle awoke to a gunshot. He found Breeden lying at

the top of the stairs and Defendant crying at the bottom of the stairs holding a gun.

He instructed her to put the gun on the stove and called 911.

Officer Brandon Broome (“Officer Broome”) with the Gastonia Police

Department and Deputy Tristan Buchanan (“Deputy Buchanan”) of the Gaston

County Sheriff’s Office responded to the call. Breeden’s body was at the top of the

stairs. There was a bullet graze injury to his left forearm, a gunshot wound to his

chest, and a pool of blood on the landing underneath his body. A single shell casing

was found at the bottom of the stairs.

Detective David Whitlock (“Detective Whitlock”) of the Gastonia Police

Department interviewed Defendant at the station. Defendant had a bruise on her

arm which she reported was from Breeden hitting her with a shower rod during their

previous physical altercation. During the interview Defendant stated she and

Breeden had argued after he awoke. She reportedly grabbed her gun and told him

he needed to leave. He refused and threatened that she needed to shoot him or he

would shoot her. He ran up the stairs, and she was afraid he was going for his rifle.

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She again told him to leave, but he refused and sat down at the top of the stairs. She

stated they continued arguing, and when he jumped up as if to come down the stairs,

she shot him. She told the Detective that she found out later her son had moved the

rifle downstairs. However, this was contradicted by Defendant when she called her

father from jail and admitted it was she who had moved the rifle downstairs.

Defendant was indicted for first-degree murder. In November 2023, the matter

came on for trial. The trial court charged the jury with instructions on first-degree

murder, second-degree murder, voluntary manslaughter, and not guilty. It also

instructed the jury on self-defense and the aggressor doctrine. On 28 November 2023,

the jury found Defendant guilty of second-degree murder, and Defendant gave notice

of appeal in open court.

II. Analysis

Defendant raises two issues on appeal, whether (1) the trial court plainly erred

by instructing the jury on the aggressor doctrine when discussing self-defense; and

(2) the trial court reversibly erred by not intervening sua sponte during the State’s

closing argument.

A. Jury Instructions

Defendant contends the trial court erred by instructing the jury on the

aggressor doctrine when there was an absence of evidentiary support for those

instructions. However, Defendant acknowledges she failed to object to the

instructions at trial and, therefore, failed to preserve this issue for review.

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It is well settled that “the plain error standard applies in cases involving

unpreserved jury instruction issues.” State v. Collington, 375 N.C. 401, 409, 847

S.E.2d 691, 697 (2020). “As a result of defendant’s failure to object to the delivery of

an ‘aggressor’ instruction to the jury before the trial court, defendant is only entitled

to argue that the delivery of the ‘aggressor’ instruction constituted plain error . . . .”

State v. Mumma, 372 N.C. 226, 241, 827 S.E.2d 288, 298 (2019).

Our Supreme Court has clearly laid out a three-factor test for plain error.

First, the defendant must show that a fundamental error occurred at trial. Second, the defendant must show that the error had a “probable impact” on the outcome, meaning that “absent the error, the jury probably would have returned a different verdict. Finally, the defendant must show that the error is an “exceptional case” that warrants plain error review, typically by showing that the error seriously affects “the fairness, integrity or public reputation of judicial proceedings.

State v. Reber, 386 N.C. 153, 158, 900 S.E.2d 781, 786 (2024) (cleaned up). “Probable

impact” was further clarified when the Supreme Court stated Defendants must prove,

“absent the error, the jury probably would have reached a different result.” Id. at

160, 900 S.E.2d at 787. Furthermore,“[t]he question is not whether the challenged

evidence made it more likely that the jury would reach the same result. Instead, the

analysis is whether, without that evidence, the jury probably would have reached a

different result.” Id.

Prior to the Supreme Court’s clarification of the plain error standard in Reber,

it had already made clear, “we need not ‘decide whether an instruction on the

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aggressor doctrine was improper’ given defendant’s failure ‘to sufficiently

demonstrate that, absent instructions on the aggressor doctrine, the jury would not

have rejected his claim of self-defense for other reasons.’” State v. Mumma, 372 N.C.

226, 241, 827 S.E.2d 288, 298 (2019) (quoting State v. Juarez, 369 N.C. 351, 359, 794

S.E.2d 293, 300 (2016)). The clarification of the “exacting prejudice standard required

for plain error review” in Reber only further supports the Court’s direction that we

need not consider whether the trial court erred if the Defendant is not able to meet

that prejudice standard. Reber, 386 N.C. at 160, 900 S.E.2d at 787.

Here, Defendant fails to reach the high bar set in Reber. Based on a thorough

review of the facts presented, Defendant fails to demonstrate that absent the

aggressor instructions it is “significantly more likely than not” the jury would have

accepted her claims of defensive force. Id. at 159, 900 S.E.2d at 787; see also State v.

Mumma, 372 N.C. 226, 241, 827 S.E.2d 288, 298 (2019). Although Defendant

presents a compelling history of domestic abuse, the facts concerning 12-13

September 2020 do not compel a belief in defensive force. Defendant had removed

and hidden Breeden’s gun prior to the final confrontation culminating in the shooting.

When police responded to the scene, Defendant had only one minor bruise on her arm.

Police found Breeden’s body and all the blood evidence located on the landing at the

top of the stairs while the shell casing rested on the downstairs floor. Ballistics

testing indicated that the shot had not been fired at close range. Although Latrelle

noted minor physical altercations between Defendant and Breeden the night before

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and awoke the first time by Breeden’s early morning yelling, he awoke a second time

by the gunshot, not an altercation. Further, Defendant lied to police during

questioning. These facts do not support Defendant’s contention that absent the

aggressor instructions it is “significantly more likely than not” that the jury would

have accepted her claims of defensive force.

Additionally, Defendant fails to provide any support for the third prong of the

Reber test, that the error seriously affects “the fairness, integrity or public reputation

of judicial proceedings,” beyond the mere assertion that because the trial court erred

it impacted fairness, integrity and reputation of judicial proceedings. Reber, 386

N.C. at 153, 900 S.E.2d at 786.

As Defendant fails to provide support for prejudice, we find no prejudicial error

in the trial court’s provision of the aggressor instruction.

B. Closing Arguments

Next Defendant contends the trial court erred in failing to intervene sua sponte

during the State’s closing arguments. Defendant concedes her failure to object to

State’s closing arguments at trial.

The standard of review when a defendant fails to object at trial is whether the argument complained of was so grossly improper that the trial court erred in failing to intervene ex mero motu. “[T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.” In determining whether the statement was

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grossly improper, we must examine the context in which it was given and the circumstances to which it refers.

State v. Parker, 298 N.C. App. 262, 266, 914 S.E.2d 97, 101 (2025) (citing State v.

Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998)). Our Supreme Court has

recognized, “[t]his is an exceedingly high bar. It applies only when the prosecutor’s

statements went so far beyond the ‘parameters of propriety’ that the trial court is

forced to intervene to protect the rights of the parties and the sanctity of the

proceedings.” Reber, 386 N.C. at 163, 900 S.E.2d at 789 (cleaned up). Defendant

asserts the State prejudiced her by misstating the law and the evidence regarding

Defendant being an aggressor.

1. Misstatements of Law

“[I]ncorrect statements of law in closing arguments are improper.” State v.

Dalton, 369 N.C. 311, 317, 794 S.E.2d 485, 489 (2016) (quoting State v. Ratliff, 341

N.C. 610, 616, 461 S.E.2d 325, 328 (1995)). However, a “trial court is not required to

intervene ex mero motu where a prosecutor makes comments during closing

argument which are substantially correct shorthand summaries of the law, even if

slightly slanted toward the State’s perspective.” State v. Taylor, 362 N.C. 514, 546,

669 S.E.2d 239, 265 (2008). Additionally, a prosecutor’s misstatement of the law may

be cured by the trial court’s subsequent correct instructions. Id. In completing this

analysis, the closing arguments “must be viewed in context and in light of the overall

factual circumstances to which they refer.” State v. Dalton, 369 N.C. 311, 318, 794

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S.E.2d 485, 490 (2016) (cleaned up).

Defendant contends the State erred in two statements of law (1) stating

Defendant was “the one that brought the gun to the party, which makes her the

aggressor[,]” and (2) pointing to Defendant’s failure to leave the house which

Defendant argues suggests that regardless of whether Defendant was an aggressor

she had the duty to leave her own residence in lieu of using defensive force.

When these statements are viewed in context, it is clear the State was

providing a thorough evaluation of the elements of self-defense and how the facts of

this case weighed against those requirements. N.C. Gen. Stat. § 14-51.4(2) clearly

states that the justification of self-defense is not available to one who “initially

provokes the use of force” unless among other factors “the person using defensive

force had no reasonable means to retreat[.]” N.C. Gen. Stat. § 14-51.4(2) (2024).

While possessing a gun in and of itself does not necessarily meet the standard to be

considered an aggressor, being the one to raise the use of force to a deadly level

absolutely can. “The jury could, on this evidence, conclude that she was the first one

to employ deadly force, and that when she did, she was the only one in possession of

a deadly weapon.” State v. Hicks, 385 N.C. 52, 64, 891 S.E.2d 235, 244 (2023).

The State’s summary of the law and its application to the facts was expansive

and explained various factors the jury could consider. This included, taken in the

light most favorable to the State, that as the only person wielding a deadly weapon,

Defendant was an aggressor and therefore had an obligation to retreat before using

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deadly force. This does not reach the level of gross impropriety required to find error

but more closely reflects “substantially correct shorthand summaries of the law”

which were slanted toward the State’s perspective. Taylor, 362 N.C. at 546, 669

S.E.2d at 265.

Even assuming arguendo any error occurred, the trial court clearly instructed

on all the matters raised in the State’s argument including self-defense, duty to

retreat, aggressor doctrine, and excessive force without Defendant objecting. Any

misstatement or confusion of law caused by the State’s arguments would have been

cured by the trial court’s instruction. Id.

2. Misstatements of Fact

Defendant argues the State made three misstatements of fact during closing

arguments, (1) the prosecutor said Breeden didn’t say “either you do me or I do you”

until after Defendant retrieved her gun; (2) the prosecutor argued Defendant

admitted Breeden “was sitting at the top of the stairs when she shot him[;]” and (3)

the prosecutor said according to the pathologist the gunshot entered at a “slight

upward angle” when in fact the testimony was “slightly downward.” These

arguments fail for two reasons.

First, a thorough review of the record reveals both the first and second

statements are supported by the evidence and testimony. “It is proper for a

prosecutor during closing argument to describe testimony or other evidence that was

introduced during the trial.” Reber, 386 N.C. at 164, 900 S.E.2d at 790. In her initial

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interview admitted into evidence, Defendant stated, “That’s when I, you know,

grabbed my gun. And, um, at that point he was like, you know, do me, I’m gonna do

you.” Then during cross-examination Defendant testified,

State: It was from that point, with him at the top of the stairs and you at the bottom, you shot him, correct?

Defendant: I wasn’t all the way at the bottom.

State: Were [you] up on that landing, two steps up on the landing?

Defendant: I was about three steps up.

State: Three steps up. You were continuing to pursue him upstairs while you were armed and he was not?

Defendant: I wasn’t pursuing. I stopped. I stopped where I was at.

State: But he was sitting at the top of the stairs and you were two or three steps up when you shot him?

Defendant: Yes.

Defendants’ own statements clearly support the State’s assertions during closing

arguments. The fact Defendant’s statements changed throughout the pendency of

the case does not preclude the State from describing the evidence during closing

remarks. When evidence is introduced without objection at trial and does not meet

the criteria for plain error, it is well within the “parameters of propriety” for a trial

court to permit that evidence to be described in closing arguments. Reber, 386 at 164,

900 S.E.2d at 790.

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Finally, the State concedes the prosecutor’s statement regarding the trajectory

of the bullet included a lapsus linguae or slip of the tongue. The prosecutor was

making an argument that the trajectory of the bullet indicated Breeden was sitting

at the time of the shooting as opposed to standing, reinforcing the idea that he was

not the aggressor.

[I]f she is standing up at the top of the stairwell and she raises her arm to shoot, that bullet is going to go low to high. That is basic angle, but it didn’t. It was a slight upward angle. Why? Because he was sitting at the top of those stairs, maybe with his hands up leaning a little forward, but he was sitting at the top of those stairs. He was not standing there. Why does that matter? Because she has to be in imminent fear of death or great bodily harm, and he was just sitting there with no gun when she shot him.

(emphasis added). During trial the forensic pathologist, Dr. James Sullivan

(“Dr. Sullivan”), testified the bullet path was very slightly downward and to the right.

Therefore, the prosecutor’s use of upward instead of downward was incorrect and

error. However, it clearly appears to be a slip of the tongue as a downward trajectory

supported the prosecutor’s argument and there is no evidence that he would have

chosen to or intentionally argued otherwise. Additionally, prior to closing arguments

the trial court instructed the jury that “arguments of the lawyers are not evidence”

and if its “recollection of the evidence differs from that of the lawyer,” the jury is “to

be guided exclusively by your own recollection of the evidence.” Following closing

arguments and during jury instructions, the trial court stated, “[i]f your recollection

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of the evidence differs from that of the attorneys, you are to rely solely upon your

recollection[.]” Therefore, once again, any misstatement or confusion of law caused

by the State’s arguments would have been cured by the trial court’s instruction. State

v. Taylor, 362 N.C. at 546, 669 S.E.2d at 265.

Regardless, a single misstatement concerning a minor factual issue within the

entirety of the State’s closing argument cannot reach the “exceedingly high bar” of

statements “so far beyond the ‘parameters of propriety’” as to be error for the trial

court not to intervene. Reber, 386 N.C. at 163, 900 S.E.2d at 789.

We hold the trial court did not err by failing to intervene sua sponte during the

State’s closing arguments

III. Conclusion

For the foregoing reasons, we conclude the trial court did not prejudicially err

in its instruction to the jury nor was it required to intervene sua sponte during the

State’s closing arguments. Defendant received a fair trial free from prejudicial error.

NO PREJUDICIAL ERROR.

Judges ZACHARY and STADING concur.

Report per Rule 30(e).

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