An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-917

                                  Filed: 5 May 2015

Guilford County, No. 13 CRS 81488

STATE OF NORTH CAROLINA

             v.

CLARENCE CLIFTON ROBINSON


      Appeal by Defendant from judgment entered 3 April 2014 by Judge Edgar B.

Gregory in Guilford County Superior Court.       Heard in the Court of Appeals 18

February 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Bethany A.
      Burgon, for the State.

      Kimberly P. Hoppin for Defendant.


      STEPHENS, Judge.


      Defendant Clarence Clifton Robinson was convicted in Guilford County

Superior Court on one count of assault with a deadly weapon with intent to kill

inflicting serious injury. Robinson appeals from the trial court’s denial of his motion

to dismiss the charge against him for insufficient evidence and its failure to instruct

the jury on the lesser included offense of assault inflicting serious injury. Robinson

also argues that the trial court committed plain error by allowing the State to
                                 STATE V. ROBINSON

                                  Opinion of the Court



impermissibly comment during cross-examination and closing arguments on the

exercise of his right to remain silent. After careful consideration, we hold that the

trial court did not commit any prejudicial error.

                           I. Facts and Procedural History

      On the afternoon of 9 June 2013, Officer Timothy D. Brown of the Greensboro

Police Department (“GPD”) responded to a reported stabbing at a residence located

at 110 Shaw Street. When he arrived at the scene, Officer Brown found EnRico

Pelcher seated on the front steps and bleeding from his face and chest. Officer Brown

asked Pelcher to lie down so his wounds could be assessed, then called for back-up.

Although Pelcher was in such extreme pain that he had difficulty speaking clearly,

he told Officer Brown that a man called “C-Note” had stabbed him “over a gun.”

Officer Brown found a pocketknife with a brass knuckle handle on the porch, but did

not recover any guns from the scene or find any evidence that one had been fired

there recently. Pelcher, who suffered stab wounds to his face, chest, back, rib cage,

and ear, lost consciousness shortly thereafter and was taken to Moses Cone Hospital

for emergency surgery to repair cuts to several blood vessels and a collapsed lung and

kidney. He was released one week later after spending three and a half days in a

coma and accruing over $130,000.00 in medical bills.

      During a subsequent interview with GPD investigators, Brenda Davis, a

resident of 110 Shaw Street, identified “C-Note” as her daughter’s ex-boyfriend,



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                                  Opinion of the Court



Clarence Clifton Robinson. After visits to Robinson’s previous local addresses turned

up nothing, Detective John Matthews of GPD’s Violent Criminal Apprehension Team

received information that Robinson had fled to his mother’s house in the Bronx, New

York. Detective Matthews used a police database to find Robinson’s mother’s address

and then contacted New York authorities to check it. On 16 July 2013, Robinson was

arrested and brought back to North Carolina.

      On 19 August 2013, Robinson was indicted by a Guilford County grand jury on

one count of assault with a deadly weapon with intent to kill inflicting serious injury

and one count of assault with a deadly weapon with a minor present. A jury trial

began on 31 March 2014 in Guilford County Superior Court. Pelcher and Robinson

were the only two witnesses present during the stabbing who testified.

      Pelcher testified that on 9 June 2013, he had been dating Robinson’s ex-

girlfriend Ashley Davis for about four years. Davis lived with her mother Brenda at

110 Shaw Street. Pelcher explained that he had first met Robinson in 2001 or 2002

while he was dating Robinson’s sister, Niki, and that prior to the stabbing, he and

Ashley had last seen Robinson earlier that morning at roughly six o’clock after a party

at a mutual acquaintance’s house. Pelcher testified that he and Robinson had

exchanged words that morning about how Pelcher had treated both Niki and Ashley,

but that their conversation had not involved any “yelling or really kind of going—

going at each other’s throats or anything.” Pelcher testified further that he and



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                                  Opinion of the Court



Ashley had gone to her mother’s house at around two o’clock that afternoon, then

Ashley spoke to someone on the phone and suggested they go get some food. When

they returned, they found a man called “Tech,” who Pelcher believed was Robinson’s

brother, sitting inside the residence on a couch. Robinson then walked in the door and

accused Pelcher of having stolen his gun. Pelcher denied having Robinson’s gun and

lifted his shirt to show that he was not carrying any weapons. Ashley and her mother

told the two men to take their argument outside. Pelcher testified that they did, and

were accompanied by Tech, Ashley, and her minor daughter. Once outside, Pelcher

continued to tell Robinson that he did not have his gun, but Robinson did not believe

him and declared that he would not leave without it. Tech urged the two men to fight

but Pelcher said he did not want to because he did not know whether Robinson had

any weapons. Instead, Pelcher attempted to go back inside the house but someone

inside had closed the door and would not open it. At that point, according to Pelcher,

Robinson reached into his front pocket, pulled out the pocketknife with the brass

knuckle handle, and came at him.

      Pelcher testified that during the struggle that ensued, he did not immediately

realize that he had been stabbed, but that he eventually wrestled the knife out of

Robinson’s hand, at which point Robinson apologized and then fled the scene with

Tech. After unsuccessfully attempting to leave the scene in his own car, Pelcher

collapsed to the ground covered in blood and screamed for help but there was no one



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                                 Opinion of the Court



in sight. Eventually, Ashley came around the corner, asked if he was OK, borrowed

the phone out of his pocket to call for help, then left the scene before police or

ambulances could arrive because she had a warrant out for her arrest. On cross-

examination, Pelcher acknowledged minor inconsistencies between his testimony and

his prior statements to GPD investigators but ultimately did not waver in his

insistence that he was neither armed nor the aggressor during the stabbing.

      Robinson’s testimony presented a dramatically different version of the

incident. Robinson testified that he had been regularly buying cocaine from Pelcher

for some time. On 9 June 2013, he went to 110 Shaw Street on to buy more cocaine

from Pelcher when an argument broke out. Robinson testified that he made it known

that he was unhappy with the quality of cocaine Pelcher had sold him several days

earlier, that Pelcher responded by accusing him of sleeping with Ashley, and that

eventually the two men were told to take their argument outside. They left the house

and the argument escalated on the front porch, where Pelcher kicked Robinson, then

Robinson charged Pelcher, at which point Pelcher pulled out a gun and pointed it at

Robinson. Robinson testified that he grabbed Pelcher’s gun with his left hand, pulled

out his brass knuckle-handled pocketknife with his right hand, opened it, and then

stabbed Pelcher in self-defense. Robinson testified further that Pelcher eventually

dropped the gun but then grabbed for the knife and began to cut him as the two men

continued to tussle. According to Robinson, at some point, Ashley picked up the gun



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                                  Opinion of the Court



and fled around the corner, then Robinson let go of the knife and left the scene as

well. Robinson testified that he did not seek any medical treatment for the injuries

he claimed to have suffered while he and Pelcher struggled over the knife, and that

he subsequently went to New York because he received phone calls from Pelcher’s

associates threatening his safety. On cross-examination, the State repeatedly asked

Robinson why, if he had been acting in self-defense, had he not called the police after

Pelcher pulled a gun on him; Robinson replied that he had feared the police would

blame him and put him in jail. When asked whether he had told anyone else before

trial that he had acted in self-defense, Robinson answered that he had not told anyone

apart from his mother and his attorney because “the only person I’m supposed to talk

to is my attorney.” The State revisited this theme in its closing argument to the jury,

noting that “it would have been nice if I had had a person such as [Robinson’s] mother

or any other person who since June the [ninth] of last summer he had told this story

to besides you jurors today. There is no other person. He has not told any other

person.”

      At the close of the State’s evidence, Robinson moved to dismiss both the

charges against him for insufficient evidence. The trial court denied the motion with

regard to the charge of assault with a deadly weapon with intent to kill inflicting

serious injury, but dismissed the charge of assault with a deadly weapon with a minor

present because the State could not satisfy the required element of showing a



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                                   Opinion of the Court



personal relationship between the defendant and the victim. At the close of all the

evidence, Robinson renewed his motion to dismiss the remaining charge, but the trial

court denied it, reasoning “there’s been substantial evidence of each element of the

offense as well as substantial evidence that the defendant was the perpetrator such

as to cause the court to overrule the motion and allow the case to be ruled upon by

the jury.” During the Rule 21 jury instructions conference that followed, the trial

court granted Robinson’s request for a self-defense instruction. Robinson also

requested that the trial court instruct the jury on the lesser included offenses of

assault with a deadly weapon, assault inflicting serious injury, and simple assault.

The trial court declined to offer an instruction on assault inflicting serious injury but

included instructions on the other two lesser included offenses and noted Robinson’s

objection for the record. The jury ultimately returned a verdict finding Robinson

guilty of assault with a deadly weapon with intent to kill inflicting serious injury. The

trial court entered judgment on 3 April 2014 and sentenced Robinson to a term of 96

to 128 months imprisonment. Robinson gave notice of appeal in open court.

                                      II. Analysis

            A. Motion to dismiss for insufficient evidence of intent to kill

      Robinson argues that the trial court erred in denying his motion to dismiss the

charge of assault with a deadly weapon with intent to kill inflicting serious injury




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because the State failed to present sufficient evidence of his intent to kill. We

disagree.

      In reviewing a trial court’s denial of a motion to dismiss, this Court applies a

de novo standard of review. See State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,

33 (2007). A defendant’s motion to dismiss should be denied if “there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator of such offense.” State

v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” State v. Stone, 323 N.C. 447, 451, 373 S.E.2d 430, 433 (1988)

(citation omitted). When ruling on a motion to dismiss, the trial court must view the

evidence “in the light most favorable to the State, making all reasonable inferences

from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573

S.E.2d 870, 889 (2002) (citation omitted). “Contradictions and discrepancies do not

warrant dismissal of the case but are for the jury to resolve.” State v. Fritsch, 351

N.C. 373, 379, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148

L. Ed. 2d 150 (2000). “The evidence need only give rise to a reasonable inference of

guilt in order for it to be properly submitted to the jury for a determination of [the]

defendant’s guilt beyond a reasonable doubt.” Stone, 323 N.C. at 452, 373 S.E.2d at

433 (citation omitted). However, a motion to dismiss should be allowed where the



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evidence does no more than raise a suspicion or conjecture as to the defendant’s guilt.

Id.

      As defined by our General Statutes, the elements of the offense of assault with

a deadly weapon with intent to kill inflicting serious injury are: “(1) an assault, (2)

with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not

resulting in death.” State v. Wampler, 145 N.C. App. 127, 130, 549 S.E.2d 563, 567

(2001) (citation omitted); see also N. C. Gen. Stat. § 14-32(a) (2013). As this Court has

previously recognized, “[p]roof of an assault with a deadly weapon inflicting serious

injury not resulting in death does not, as a matter of law, establish a presumption of

intent to kill. Such intent must be found by the jury as a fact from the evidence.” Id.

(citation omitted). However, “an intent to kill may be inferred from the nature of the

assault, the manner in which it was made, the conduct of the parties, and other

relevant circumstances.” Id. (citation omitted).

      In the present case, Robinson contends that although the evidence presented

at trial may have been sufficient to prove assault with a deadly weapon inflicting

serious injury, it did not establish his intent to kill Pelcher. This argument fails,

however, in light of the undisputed evidence in the record, including Robinson’s own

testimony under direct and cross-examination, that Robinson was armed with brass

knuckles but instead stabbed Pelcher multiple times in the chest and face with a

pocketknife attached to the knuckles and then left the scene without any attempt to



                                          -9-
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                                   Opinion of the Court



call for help while Pelcher bled profusely from his wounds. Taking all the evidence in

the light most favorable to the State, we therefore conclude that the State presented

sufficient evidence from which the jury could reasonably infer that Robinson did

indeed act with the requisite intent to kill Pelcher. Accordingly, we hold that the trial

court did not err in denying Robinson’s motion to dismiss.

                    B. Jury instructions for lesser included offense

      Robinson contends that the trial court erred by declining to instruct the jury

on the lesser included offense of assault inflicting serious injury. We disagree.

      We note at the outset that there is some confusion between the parties over

whether this issue has been properly preserved for our review. The State argues that

because Robinson failed to object at trial after the instructions were read to the jury,

he has failed to satisfy the requirements of N.C.R. App. P. 10(b)(2), and thus our

review must be limited to whether the trial court committed plain error by rejecting

Robinson’s proposed jury instruction on assault inflicting serious injury. However, as

this Court has previously explained, the purpose of Rule 10(b)(2) “is to bring errors

in jury instructions to the trial court’s attention in order to prevent unnecessary new

trials.” State v. West, 146 N.C. App. 741, 743, 554 S.E.2d 837, 839 (2001) (citation

omitted). “This policy is met when a request to alter an instruction has been

submitted and the trial judge has considered and refused the request.” Id. (citation

and brackets omitted). In the present case, Robinson requested an instruction on



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assault inflicting serious injury during the Rule 21 jury instructions conference; the

trial court denied this request, but expressly noted Robinson’s objection for the record.

Thus, as in West, we conclude here that Robinson’s “tender of proposed jury

instructions and the trial court’s refusal to submit these to the jury sufficed to

preserve the issue for appeal, and our review is not restricted to plain error.” Id.

      As a general matter,

             [w]hen considering whether to submit to the jury a lesser
             included offense, the trial court must determine whether
             (1) the lesser offense is, as a matter of law, an included
             offense for the crime for which the defendant is indicted
             and (2) there is evidence in the case which will support a
             conviction of the lesser included offense.

Smith, 186 N.C. App. at 65, 650 S.E.2d at 35 (citation and internal quotation marks

omitted). The failure to instruct the jury on a lesser included offense when the

evidence supports such an instruction “constitutes reversible error that cannot be

cured by a verdict finding the defendant guilty of the greater offense.” State v.

Liggons, 194 N.C. App. 734, 742, 670 S.E.2d 333, 339 (2009) (citation omitted).

However, our Supreme Court has long recognized that “when all the evidence tends

to show that [the] defendant committed the crime charged in the bill of indictment

and there is no evidence of the lesser[]included offense, the court should refuse to

charge on the lesser[]included offense.” State v. Summitt, 301 N.C. 591, 596, 273

S.E.2d 425, 427 (citation omitted), cert. denied, 451 U.S. 970, 68 L. Ed. 2d 349 (1981).

This Court’s prior decisions make clear that assault inflicting serious injury is a lesser


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included offense of assault with a deadly weapon with intent to kill inflicting serious

injury, see, e.g., State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002),

and that its essential elements are “(1) an assault (2) inflicting serious injury.”

Liggons, 194 N.C. App. at 742, 670 S.E.2d at 339 (citation omitted); see also N.C. Gen.

Stat. § 14-33(c)(1) (2013).

      In the present case, Robinson complains that the trial court erred by declining

to instruct the jury on assault inflicting serious injury because it did not instruct the

jury that the brass knuckle-handled pocketknife that Robinson admitted to stabbing

Pelcher with was a deadly weapon as a matter of law. By Robinson’s logic, the fact

that the trial court did include a jury instruction on simple assault demonstrates that

the issue of whether or not the knife was a deadly weapon was a matter for the jury’s

determination and also implies that the evidence was sufficient to support a finding

by the jury that Pelcher was intentionally cut or stabbed with a weapon that was not

deadly. In support of this argument, Robinson cites our Supreme Court’s decision in

State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977), which recognized that,

             [w]here the allegedly deadly weapon and the manner of its
             use are of such character as to admit of but one conclusion,
             the question as to whether or not it is deadly within the
             foregoing definition is one of law, and the [trial c]ourt must
             take the responsibility of so declaring. . . . But where it may
             or may not be likely to produce fatal results, according to
             the manner of its use, or the part of the body at which the
             blow is aimed, its allegedly deadly character is one of fact
             to be determined by the jury.



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Id. at 643, 239 S.E.2d at 413 (citation omitted). As such, Robinson argues that the

trial court’s failure to instruct on the lesser included offense of assault inflicting

serious injury deprived the jury of the only option by which it could have concluded

that although Pelcher’s injuries were serious, Robinson acted without a deadly

weapon.

      There are several reasons why this argument fails. First, although our State’s

appellate courts have long acknowledged that “the evidence in each case determines

whether a certain kind of knife is properly characterized as a lethal device as a matter

of law or whether its nature and manner of use merely raises a factual issue about

its potential for producing death,” see, e.g., State v. Sturdivant, 304 N.C. 293, 301, 283

S.E.2d 719, 726 (1981) (citations omitted), our prior decisions have also made clear

that “[t]he definition of a deadly weapon clearly encompasses a wide variety of knives.

For instance, a hunting knife, a kitchen knife, and a steak knife have been

denominated deadly weapons per se. . . . A pocketknife is also unquestionably capable

of causing serious bodily injury or death.” Id. at 301, 283 S.E.2d at 725-26; see also

State v. Collins, 30 N.C. 407, 409, 412 (1848) (opining that a pocketknife with a two

and a half-inch blade was a deadly weapon as a matter of law); State v. Cox, 11 N.C.

App. 377, 380, 181 S.E.2d 205, 207 (1971) (holding that a knife with a three-inch

blade constitutes a deadly weapon per se when used as a weapon in an assault).

Moreover, “well-established principles of North Carolina law allow the extent to



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which a particular instrument is a deadly weapon to be inferred based on the effects

resulting from the use made of that instrument.” State v. Walker, 204 N.C. App. 431,

446, 694 S.E.2d 484, 494 (2010) (holding that a small knife was a deadly weapon

where the defendant used it to wound the victim’s lip, arm, and back and cause a

puncture wound to the victim’s lung, resulting in substantial bleeding and inflicting

injuries requiring significant medical treatment); see also State v. Graham, 186 N.C.

App. 182, 195, 650 S.E.2d 639, 648 (2007) (holding that the serious nature and extent

of the victim’s injuries were sufficient for the trial court to instruct the jury that a

knife was a deadly weapon as a matter of law where one was used to stab a victim

nine times resulting in a collapsed lung and other life-threatening injuries requiring

surgery), appeal dismissed and disc. review denied, __ N.C. __, 666 S.E.2d 765 (2008);

State v. Smallwood, 78 N.C. App. 365, 369, 337 S.E.2d 143, 145 (1985) (“Where the

victim has in fact suffered serious bodily injury or death, the courts have consistently

held that a knife is a dangerous or deadly weapon per se absent production or detailed

description.”).

       When considered collectively, the prior cases from this Court and our Supreme

Court make clear that when a knife is used in an assault as a knife or in any other

way “likely to produce death or great bodily harm,” it is proper to instruct the jury

that it is a deadly weapon as a matter of law. See, e.g., State v. Torain, 316 N.C. 111,

121, 340 S.E.2d 465, 471 (citation omitted), cert. denied, 479 U.S. 836, 93 L. Ed. 2d



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77 (1986). In fact, as our Supreme Court noted in Torain, where a knife “is of such

character as to admit of but one conclusion,” the trial court commits harmless error

by leaving the question of its deadly character for the jury’s determination. Id. at 119,

340 S.E.2d at 470. Indeed, in State v. McKinnon, 54 N.C. App. 475, 283 S.E.2d 555

(1981), this Court rejected a defendant’s argument that his conviction for assault with

a deadly weapon resulting in serious bodily injury should be vacated because the trial

court had submitted the question of whether the knife he used on the victim was a

deadly weapon to the jury and therefore, according to the defendant, should have also

been required to instruct the jury on the lesser included offense of assault inflicting

serious injury. Id. at 476-77, 283 S.E.2d at 557. Instead, we reasoned that because

the uncontradicted evidence in the record demonstrated that the defendant’s assault

caused the victim’s lung to collapse, the circumstances of the knife’s use “admit of but

one conclusion,” thus making its deadly character a question of law for the trial

court’s determination. Id. at 477, 283 S.E.2d at 557. We therefore held that “the trial

court should have held that the pocketknife as used by [the] defendant was a deadly

weapon as a matter of law. There was, therefore, no error in the court’s failure to

submit the lesser offense of [assault inflicting serious injury].” Id. at 478, 283 S.E.2d

at 557.

      Here, we are confronted with virtually the same issue as in McKinnon, and we

reach a similar conclusion. The uncontradicted evidence in the record demonstrates



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that Robinson used his brass knuckle-handled pocketknife to stab Pelcher five times,

resulting in wounds to his face, chest, back, rib cage, and ear, cuts to several blood

vessels, and a collapsed lung and kidney, which required emergency surgery and left

Pelcher hospitalized for one week, half of which he spent in a coma. Clearly then,

Robinson used his knife in a way that was “likely to produce death or great bodily

harm.” See Torain, 316 N.C. at 121, 340 S.E.2d at 471. We consequently have no

trouble concluding that the trial court should have instructed the jury that the knife

was a deadly weapon as a matter of law. We further conclude that, as recognized in

Torain, the trial court’s failure to properly instruct the jury on this issue constituted

harmless error. See id. at 119, 340 S.E.2d at 470 (“[A]llowing [the] jury to decide

nature of instrumentality is error in some cases, but the higher burden of proof . . . is

advantageous to [the] defendant and is therefore harmless error.”). Moreover,

Robinson cites no evidence whatsoever from which a reasonable juror could rationally

conclude that the brass knuckle-handled pocketknife was used in any way other than

as a deadly weapon, and our review of the record reveals none either. We therefore

conclude, as in McKinnon, that the evidence here does not support a jury instruction

on the lesser included offense of assault inflicting serious injury. Accordingly, we hold

that the trial court did not err in declining to instruct the jury on this charge.




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                              C. Right to remain silent

      Finally, Robinson argues that the trial court committed plain error by allowing

the State to comment without objection during cross-examination and in its closing

argument on Robinson’s decision to exercise his right to remain silent. We disagree.

      “A criminal defendant’s right to remain silent is guaranteed under the Fifth

Amendment to the United States Constitution and is made applicable to the States

by the Fourteenth Amendment.” State v. Richardson, __ N.C. App. __, __, 741 S.E.2d

434, 440 (2013). North Carolina’s appellate courts “have consistently held that the

State may not introduce evidence that a defendant exercised his [F]ifth [A]mendment

right to remain silent.” State v. Moore, 366 N.C. 100, 104, 726 S.E.2d 168, 172 (2012)

(citations and internal quotation marks omitted). “If a defendant has been given his

Miranda warnings, his silence may not be used against him.” Id. (citations and

internal quotation marks omitted). “The rationale underlying this rule is that the

value of constitutional privileges is largely destroyed if persons can be penalized for

relying on them.” Id. (citation, internal quotation marks, and brackets omitted). As a

result, the extent to which “the State may use a defendant’s silence at trial depends

on the circumstances of the defendant’s silence and the purpose for which the State

intends to use such silence.” State v. Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886,

894, appeal dismissed and disc. review denied, 362 N.C. 683, 670 S.E.2d 566 (2008).

This Court has previously explained that



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            a defendant’s pre-arrest silence and post-arrest, pre-
            Miranda warnings silence may not be used as substantive
            evidence of guilt, but may be used by the State to impeach
            the defendant by suggesting that the defendant’s prior
            silence is inconsistent with his present statements at trial.
            A defendant’s post-arrest, post-Miranda warnings silence,
            however, may not be used for any purpose.

State v. Mendoza, 206 N.C. App. 391, 395, 698 S.E.2d 170, 174 (2010) (citations and

internal quotation marks omitted).

      In the present case, Robinson alleges two separate violations of his right to

remain silent. First, he contends that the State repeatedly and impermissibly

commented on his exercise of that right during cross-examination based on the

following exchange:

            Q: Mr. Robinson, sir, after [Pelcher] tried to shoot and kill
            you with a gun, at what point did you report this assault
            on you to the police?

            A: Excuse me?

            Q: When did you call the police that you’d been assaulted
            with a gun?

            A: Why didn’t I call the police?

            Q: Yes.

            A: He pulled a gun out on me.

            Q: Why didn’t you call the police because you had to stab a
            man who pulled a gun out on you?

            A: Shoot—why I call the police? I mean, I’m not going to
            call the police when the man sit there and he trying to shoot


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                     Opinion of the Court



me.
…

Q: Well, when you saw a lot of blood from a man you had
cut, why didn’t you call the police and say, Hey, this man
tried to shoot me?

A: I was scared.

Q: Scared of what?

A: Scared—scared—I just stabbed this man. First thing—
first—my first reaction is that I’m going to go to jail.

Q: Well, your story to this jury is that this man was trying
to assault you. Why didn’t you tell the police that?

A: Why would I tell the police that when the police trying
to look for me for assault with a deadly weapon with
intent to kill?

Q: So, you had no thought of calling the police and telling
this story that you’re telling the jury to the police; is that
correct?

A: No, I was already told—you know what I’m saying—
make sure you tell your attorney, talk to him.

Q: Well, since June the 9th when this happened how many
people have you told this story to about the drugs and being
assaulted?

A: Talked to my attorney.

Q: Who else?

A: That’s it.

Q: Nobody? Not one other person?



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A: That’s the only person I’m supposed to talk to is my
attorney anyway—

Q: You didn’t tell Tech?

A: —situation like this.

Q: You didn’t tell Tech?

A: No, I ain’t tell Tech nothing. Tech was with me. I don’t
even talk to Tech.

Q: You didn’t tell your mother when you went to New York?

A: I didn’t tell my mother? No, I didn’t tell my mother
nothing, you know what I’m saying? My mother already
knew—it was when I went to New York. Yeah, I told her
about—he tried to assault me with a gun. She knew—yeah,
I mean, that’s—of course that.

Q: So, when you went to New York you did tell your
mother?

A: Yeah, I told my—yeah, I did tell my mother about he
tried—he tried to shoot me with a gun, yeah.

Q: Well, where’s your mother today?

A: She’s in New York. She’s at work.

Q: Who else besides your mother did you tell this story to?

A: That’s it.

Q: Your mother and your lawyer?

A: Yes, sir.




                            - 20 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



Because Robinson failed to object to this line of questioning at trial, the standard of

review is plain error.

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. . . .
             To show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and internal

quotation marks omitted). Thus, to prevail on this issue, Robinson must demonstrate

that the errors he alleges were “so fundamental as to amount to a miscarriage of

justice or which probably resulted in the jury reaching a different verdict than it

otherwise would have reached.” State v. Brunson, 187 N.C. App. 472, 477, 653 S.E.2d

552, 555 (2007) (citation omitted).

      Robinson contends that the trial court committed plain error by allowing the

State to cross-examine him about his failure to make any statement to law

enforcement before trial. In support of this argument, Robinson cites our recent

decision in Richardson. In Richardson, we granted a new trial to a defendant who

had been convicted on two counts of assault with a deadly weapon with intent to kill

inflicting serious injury in conjunction with a nightclub shooting based on our

determination that it was plain error for the trial court to allow the State to cross-

examine the defendant about his post-arrest, post-Miranda warning silence—

specifically, the fact that his trial testimony constituted the first statement he had


                                         - 21 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



made to authorities since the night of the shooting—while also stressing the fact that,

unlike the defendant, other witnesses at the crime scene had given statements to

investigating officers immediately after the shooting. Richardson, __ at __, 741 S.E.2d

at 442-43.

      Robinson argues that the same logic should apply here, but his reliance on

Richardson is misplaced because Richardson is easily distinguished from the present

facts insofar as our decision there was based on the State’s express references on

cross-examination to the defendant’s post-arrest, post-Miranda silence, see id.,

whereas here, the subject matter of the questions to which Robinson now objects

clearly relates to his pre-arrest silence. Our Supreme Court has long recognized that

“[t]he use of pre[-]arrest silence to impeach a defendant’s credibility on cross-

examination does not violate the Fifth or Fourteenth Amendment to the United

States Constitution.” State v. Bishop, 346 N.C. 365, 386, 488 S.E.2d 769, 780 (1997)

(citing Jenkins v. Anderson, 447 U.S. 231, 65 L. Ed. 2d 86 (1980)). As this Court has

explained,

             [w]hen a defendant chooses to testify in his own behalf . . .
             his [Fifth A]mendment right to remain silent must give
             way to the [S]tate’s right to seek to determine, by way of
             impeachment, whether a defendant’s prior silence is
             inconsistent with his trial testimony. The test is whether,
             under the circumstances at the time of arrest, it would
             have been natural for [the] defendant to have asserted the
             same defense asserted at trial.




                                         - 22 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984) (citation

omitted). In the present case, the State sought to impeach Robinson’s credibility after

he testified that he stabbed Pelcher in self-defense by pointing out that if his

testimony were true, he would have had both the opportunity and the motive to share

his version of the events with police, but instead fled to New York. This conduct, and

the silence that accompanied it, all occurred before Robinson was ever arrested,

advised of his Miranda rights, or had any contact whatsoever with law enforcement

regarding the stabbing.

      Robinson nevertheless insists that this line of questioning constituted an

impermissible inquiry into his post-arrest silence based on the prosecutor’s question:

“Well, since June the 9th when this happened how many people have you told this

story to about the drugs and being assaulted?” Robinson’s argument here is that this

question necessarily references periods of time after his extradition and arrest on 16

July 2013, and that it can be further inferred from his answers that he had already

been advised of his Miranda rights by that time. Robinson again bases his argument

on our decision in Richardson, where the defendant was arrested on the day of the

offense—20 May 2009—and we held that “the prosecutor’s questions about [the

d]efendant’s silence since May the 20th, 2009 clearly constituted an impermissible

inquiry into [his] post-arrest silence” because “[t]he clear import of the prosecutor’s

questions was that, because [the d]efendant, unlike the other witnesses, chose not to



                                         - 23 -
                                  STATE V. ROBINSON

                                   Opinion of the Court



make a statement about the shooting until trial, his account of the incident was

inherently less credible than that of the other witnesses.” __ N.C. App. at __, 741

S.E.2d at 443. While there are certain similarities between the phrasing of the

question we held violated the defendant’s right to remain silent in Richardson and

the question at issue here, our careful review of the trial transcript demonstrates

important differences in the contexts in which these questions were asked.

      Most notably, while it is beyond dispute that the impermissible question in

Richardson addressed the defendant’s post-arrest silence given its express reference

to the date of his arrest and follow-up questions about his subsequent interviews with

police, in the present case the State’s question referenced the date of the stabbing and

its follow-up questions dealt specifically with the conversations Robinson had with

individuals—namely, Robinson’s mother and his associate, Tech—who he interacted

with before his extradition from New York, which means that the focus was still on

Robinson’s pre-arrest silence. Moreover, even assuming arguendo that the trial court

erred because the prosecutor’s admittedly clumsily phrased inquiry also encompasses

Robinson’s post-arrest silence, our prior decisions indicate that this error was

harmless. Our General Statutes provide that “[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.



                                          - 24 -
                                   STATE V. ROBINSON

                                    Opinion of the Court



Stat. § 15A–1443(b) (2013). This Court has repeatedly recognized that “[t]he test is

whether the appellate court can declare a belief that there is no reasonable possibility

that the violation might have contributed to the conviction.” State v. Shores, 155 N.C.

App. 342, 351-52, 573 S.E.2d 237, 242 (2002) (citation omitted), disc. review denied,

356 N.C. 690, 578 S.E.2d 592 (2003). In Richardson, we outlined several factors, “none

of which should be deemed determinative,” that “must be considered in ascertaining

whether a prosecutorial comment concerning a defendant’s post-arrest silence

constitutes plain error,” including:

              (1) whether the prosecutor directly elicited the improper
              testimony or explicitly made an improper comment; (2)
              whether the record contained substantial evidence of the
              defendant’s guilt; (3) whether the defendant’s credibility
              was successfully attacked in other ways in addition to the
              impermissible comment upon his or her decision to exercise
              his or her constitutional right to remain silent; and (4) the
              extent to which the prosecutor emphasized or capitalized
              on the improper testimony by, for example, engaging in
              extensive cross-examination concerning the defendant’s
              post-arrest silence or attacking the defendant’s credibility
              in closing argument based on his decision to refrain from
              making a statement to investigating officers.

__ N.C. App. at __, 741 S.E.2d at 442. In the present case, we conclude that even if

we broadly construe the prosecutor’s question about who Robinson had told his

version of events to “since June the 9th” as an impermissible comment on Robinson’s

post-arrest silence, a full analysis of each factor requires a finding that the trial court

did not commit plain error. On the one hand, as discussed supra, the record contained



                                           - 25 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



substantial evidence of Robinson’s guilt. To wit: while there is no dispute that

Robinson caused serious injuries to Pelcher when he stabbed him five times with his

brass knuckle-handled pocketknife before fleeing the scene and leaving the state, the

record is devoid of any evidence to support Robinson’s claims that Pelcher had a gun,

that Pelcher threatened him with a gun, and that Robinson was also injured when

the two men scuffled. On the other hand, any fleeting reference to Robinson’s post-

arrest silence is far outweighed by the extent of the State’s cross-examination that

focused on impeaching Robinson based on his pre-arrest silence and conduct.

Furthermore, unlike in Richardson, where the prosecutor’s questions about the

defendant’s post-arrest silence focused extensively on his refusal to give a statement

during a post-arrest interview with a detective, here, viewing the record in its full

context, we find a more benign motivation for the State’s efforts to impeach

Robinson’s credibility by highlighting the fact that he had never previously

mentioned that the stabbing was in self-defense. Specifically, Robinson’s trial counsel

cross-examined Pelcher at great length about purported inconsistencies between his

testimony at trial and his prior statements to law enforcement about the stabbing.

Thus, the State’s question about how many people Robinson had told his side of the

story to since the date of the stabbing is best viewed not as an impermissible inquiry

into his post-arrest silence but instead as a legitimate means of impeaching

Robinson’s credibility by demonstrating for the jury the fact that his testimony could



                                         - 26 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



not be similarly impeached by prior inconsistent statements because he had never

made any prior statements to compare it against.

      Robinson argues further that the State clearly attempted to capitalize on this

improper line of questioning by emphasizing it during closing arguments, but this

argument fails for similar reasons because our review of the record makes clear that

although the State did attack Robinson’s credibility during its closing argument, its

basis for doing so was not Robinson’s “decision to refrain from making a statement to

investigating officers,” see id., but was instead for the proper impeachment purposes

already discussed. We therefore conclude that the trial court did not commit plain

error by allowing this line of questioning on cross-examination.

      Finally, Robinson also argues that the trial court erred in failing to intervene

ex mero motu when the State revisited these themes during its closing argument. The

standard of review when a defendant fails to object at trial is

             whether the [closing] argument complained of was so
             grossly improper that the trial court erred in failing to
             intervene ex mero motu. In determining whether the
             prosecutor's argument was . . . grossly improper, this Court
             must examine the argument in the context in which it was
             given and in light of the overall factual circumstances to
             which it refers. The 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.




                                         - 27 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



State v. McCollum, 177 N.C. App. 681, 685, 629 S.E.2d 859, 861-62 (2006) (citations,

internal quotation marks, brackets, and emphasis omitted), disc. review denied, 361

N.C. 365, 646 S.E.2d 534 (2007). Here, Robinson claims the State impermissibly

commented on his silence during its closing argument when the prosecutor told the

jury that “it would have been nice if I had had a person such as [Robinson’s] mother

or any person who since June the [ninth] of last summer he had told this story to

besides you jurors today. There is no other person. He has not told any other person.”

He also complains of the prosecutor’s statement to the jury that “[Robinson] can tell

you anything he wants to tell you, because he’s never told this story to any other

person,” as well as the prosecutor’s statement that

             [t]hat is the issue, what was his intent. If you take that
             element out, let’s say you’ve heard everything, 12 people
             certainly smarter than I am, they could come up with some
             other reason why he would cut this man and stab this man
             in this way and conduct himself, Mr. Robinson that is,
             during and after the incident in the way he did by fleeing,
             not reporting to police—staying gone as long as he could
             and leaving the State.

In light of the preceding analysis and taken in context with the record as a whole, we

conclude that the trial court did not err in failing to intervene ex mero motu. When

read together, the first two statements refer not to Robinson’s post-arrest silence but

instead to the fact that, unlike Pelcher, who Robinson’s attorney repeatedly

questioned about his own prior inconsistent statements, Robinson could not be

similarly impeached because there was nothing to compare his testimony against.


                                         - 28 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



The third statement clearly refers to Robinson’s pre-arrest conduct and silence. All

three of these statements are rooted in questions that were properly used to impeach

Robinson on cross-examination and, unlike in Richardson, none of them specifically

reference Robinson’s decision to exercise his right to remain silent in the face of

questions from investigators. Thus, as discussed supra, even assuming arguendo that

the trial court erred because the first two statements could, if construed broadly, be

found to impermissibly refer to Robinson’s post-arrest silence, our analysis of the

factors articulated in Richardson demonstrates that the State’s closing argument was

not so grossly improper as to require a finding by this Court that the trial court

abused its discretion in not recognizing and correcting it ex mero motu. Accordingly,

we hold Robinson’s arguments that he is entitled to a new trial due to violations of

his Fifth and Fourteenth Amendment rights are without merit.

      NO PREJUDICAL ERROR.

      Judges HUNTER, JR., and TYSON concur.

      Report per Rule 30(e).




                                         - 29 -
