               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA19-967

                                Filed: 7 April 2020

Haywood County, No. 18 CRS 315-16

STATE OF NORTH CAROLINA

              v.

SHANNA CHEYENNE SHULER


      Appeal by defendant from judgment entered 31 October 2018 by Judge William

H. Coward in Haywood County Superior Court. Heard in the Court of Appeals 17

March 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
      Kiziah, for the State.

      W. Michael Spivey for defendant-appellant.


      TYSON, Judge.


      Shanna Cheyenne Shuler (“Defendant”) appeals from judgment entered upon

the jury’s verdicts finding her guilty of trafficking in methamphetamine and simple

possession of marijuana. We find no error.

                                  I. Background

                                A. State’s Evidence

      Maggie Valley Chief of Police Russell Gilliland and Detective Brennan Regner

responded to a disturbance call at a motel involving the occupants of a silver Ford
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Fusion automobile on 2 March 2017. Detective Regner observed the vehicle at a

nearby residence, with a man standing outside the vehicle. Both officers approached

the man, who identified himself as Joshua Warren and presented a South Carolina

driver’s license. The officers determined outstanding warrants were pending for

Warren’s arrest. Warren was arrested, searched, and taken from the scene. The

officers found $1,700.00 in cash on Warren when he was searched.

      The officers approached Defendant, who had been sitting in the vehicle, and

asked her for identification. Defendant produced a valid identification card. The

officers learned an arrest warrant was also pending for Defendant. Chief Gilliland

informed Defendant of the arrest warrant and asked if she had any contraband on

her. Defendant appeared hesitant, then removed a clear bag containing a leafy

substance from inside of her bra.          Chief Gilliland specifically referenced

methamphetamine and asked Defendant again if she had anything else on her

person.

      Detective Regner explained to Defendant that she could face additional

charges if she arrived at the detention facility with other contraband on her.

Defendant produced another clear bag, also from inside of her bra, containing a

crystal-like substance. The officers seized the evidence and the vehicle, and took

Defendant into custody.




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      The next day, officers searched the vehicle. A digital scale, rolling papers, and

a clutch bag with Defendant’s name on it were found in the center console. Defendant

was charged with felony trafficking in methamphetamine and with misdemeanor

possession of marijuana. Prior to trial, Defendant timely filed her notice of intent to

offer the defense of duress pursuant to N.C. Gen. Stat. § 15A-905(c)(1).

      Detective Regner testified for the State. The State asked her if Defendant had

made “any statements about Joshua Warren when she took those substances out of

her bra?” Defendant’s counsel objected, citing the right to counsel under the Fifth

Amendment to the Constitution of the United States. The trial court overruled the

objection. Detective Regner answered: “No, ma’am. She made no -- no comment

during that one time.”

      Defendant’s counsel moved for the court to excuse the jury.          Outside the

presence of the jury, Defendant’s counsel moved for a mistrial over the State’s

question, which had “solicited an answer highlighting [Defendant’s] silence at the

scene.” The trial court acknowledged Defendant’s prior objection and conducted a

voir dire of Detective Regner’s testimony to address whether Defendant was under

arrest at the time of her alleged silence.

      Detective Regner testified during the voir dire that Defendant was not in

custody when she was approached and asked if she possessed any illegal substances

on her. On cross-examination during the voir dire, Detective Regner testified she and



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Chief Gilliland approached Defendant once they had learned of her pending arrest

warrant and asked her: “You’re under arrest, do you have anything on you?”

      The trial court allowed the State to re-ask the question when the jury returned

over Defendant’s objection.

                              B. Defendant’s Testimony

      Defendant testified in her own defense. She admitted she was addicted to

methamphetamine. Defendant had known Warren’s family. Warren had befriended

her on social media on 28 February 2019. She testified Warren asked her if she

wanted to accompany him as he rented a car on 2 March 2019. Defendant explained

Warren was “known to police” and “just wanted to be in a different car so he could go

and do whatever.” She testified she agreed to go with Warren because she had been

using methamphetamine, had been awake for eight days, and was bored.

      Defendant testified Warren drove to a motel in Maggie Valley to meet the

person who would rent him another car. She testified the motel owner “had some

words” and was cursing with Warren when he stepped out of the car there. Warren

and Defendant left the motel. Defendant testified Warren then saw a truck with the

people he had intended to meet. Warren told them to meet him at a store across the

street from the motel.

      Warren drove to the store and met with the people in the truck. Defendant

testified she saw Warren pull “a small baggie” out of his pants and hand it into the



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passenger side window of the truck. She then saw someone from the truck hand

money to Warren. She was sitting in the passenger seat of Warren’s car at the store

when they first saw the police arrive at the motel.

      She testified Warren drove away from the store. Warren pulled the car into

the driveway of a house she did not know and exited the car. She presumed Warren

went to knock on the door of the house, while she remained in the passenger seat.

She testified Warren was returning to the car when the police officers arrived. The

officers spoke with Warren and left.

      After the officers left, Warren told her he thought he had an active warrant for

his arrest “for tying my girlfriend to a tree.” She testified Warren then saw the

officers returning and cursed. He pulled a bag out of his pants and tossed it into

Defendant’s lap. She testified Warren stated, “if you don’t hide it then you’ll be the

next one chained to a tree.”

      Defendant testified she took Warren’s threat seriously and put the bag he had

given to her into her bra. Defendant did not testify concerning her silence about

Warren’s threat in response to the officers’ questions to her.

      Defendant also called Warren as a witness in her defense. Warren plead his

Fifth Amendment rights rather than answering most questions Defendant’s counsel

asked. Warren denied he had ever tied his girlfriend to a tree or had threatened

Defendant.



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      The trial court instructed the jury on the defense of duress. The jury’s verdict

found Defendant guilty of both charges. The trial court consolidated the charges and

sentenced Defendant to an active term of 70 to 93 months in prison and ordered

$57,533.00 in fees, fines, and costs entered as a civil judgment. Defendant entered

notice of appeal in open court.

                                     II. Jurisdiction

      An appeal as of right lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b)(1) and 15A-1444(a) (2019).

                                        III. Issue

      Defendant argues the trial court erred by admitting into evidence testimony of

her silence in response to questions by the police officers. She asserts this admission

violates her privilege against self-incrimination under the Fifth and Fourteenth

Amendments to the Constitution of the United States.

                                  IV. Standard of Review

      “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Veney, 259 N.C. App. 915, 917, 817 S.E.2d 114, 116 (citation omitted),

disc. review denied, 371 N.C. 787, 821 S.E.2d 169 (2018). “Under a de novo review,

the court considers the matter anew and freely substitutes its own judgment for that

of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294

(2008) (citation and internal quotation marks omitted).



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                                      V. Analysis

      Defendant argues the trial court erred in allowing the State to elicit evidence

of her silence, specifically her failure to implicate Warren, after he had been removed

from the scene, when asked by police if she had any contraband on her.

             [A] criminal defendant has a right to remain silent under
             the Fifth Amendment to the United States Constitution, as
             incorporated by the Fourteenth Amendment, and under
             Article I, Section 23 of the North Carolina Constitution. A
             defendant’s decision to remain silent following [her] arrest
             may not be used to infer [her] guilt, and any comment by
             the prosecutor on the defendant’s exercise of [her] right to
             silence is unconstitutional.

State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (citations omitted).

      This Court has held “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 the defendant’s prior

silence is inconsistent with [her] present statements at trial.” State v. Booker, __ N.C.

App. __, __, 821 S.E.2d 877, 885 (2018) (citation omitted). “Whether 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, disc. review denied, 362 N.C.

683, 670 S.E.2d 566 (2008).

                                 A. Silence of Duress




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      Defendant argues the State elicited her silence during its case in chief, by

anticipating and preemptively attacking her defense of duress. Defendant argues

this testimony was impermissibly admitted as substantive evidence, rather than

permissible impeachment evidence, because she had not yet testified.

      The “main purpose of impeachment is to discount the credibility of a witness

for the purpose of inducing the jury to give less weight to [her] testimony.” State v.

Mendoza, 206 N.C. App. 391, 397, 698 S.E.2d 170, 175 (2010) (citation omitted). This

Court has held the State may not preemptively “point[] out to the jury that [a]

defendant chose to remain silent when in [a police officer’s] presence rather than

provide the explanation proffered at trial.” Id. at 398, 698 S.E.2d at 176.

      In Mendoza, the State elicited testimony that the defendant did not act

surprised when the arresting officer found cocaine in his car, nor did he offer any

explanation as he was being arrested. Id. at 396-97, 698 S.E.2d at 174-75. This Court

held admission of that testimony as substantive evidence was error. Id. at 397, 698

S.E.2d at 175. Further, in Mendoza, this Court considered and rejected the State’s

argument that it may preemptively impeach the defendant before he testified. Id.

                               B. Affirmative Defense

      Unlike in Mendoza, Defendant in this case filed written notice of her intent to

present an affirmative defense of duress. To invoke the affirmative defense of duress,

the burden is on Defendant to show her “actions were caused by a reasonable fear



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that [s]he would suffer immediate death or serious bodily injury if [s]he did not so

act.” State v. Cheek, 351 N.C. 48, 62, 520 S.E.2d 545, 553 (1999) (citation omitted),

cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).

       The State argues Defendant’s intended invocation of the affirmative defense of

duress distinguishes this case from Mendoza and aligns this case with other cases

allowing impeachment by silence. When the State seeks to impeach a defendant

through silence, “[t]he test is whether, under the circumstances at the time of arrest,

it would have been natural for defendant to have asserted the same defense asserted

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

State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980)).

       In McGinnis, this Court found no error in the admission of the defendant’s

post-arrest pre-Miranda warnings silence, concluding: “it would clearly have been

natural for [the] defendant to have told the arresting police officer that the shooting

with which [he] was accused was accidental, if [he] believed that to be the case.” Id.

Here, it would have been similarly “natural for” Defendant to have told the arresting

officers the contraband she possessed belonged to Warren and he had threatened her

to conceal it, if she “believed that to be the case.” Id.

       Warren had been arrested and removed from the scene before the officers

asked Defendant if she possessed any contraband on her.           The threat Warren




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assertedly posed to Defendant was greatly mitigated, if not completely eliminated, by

his arrest and removal.

      The only difference between this case and McGinnis is that the State elicited

evidence of Defendant’s silence asserting Warren’s threat in its case in chief.

Defendant had appropriately notified the State of her intended defense, pursuant to

N.C. Gen. Stat. § 15A-905(c)(1) (2019). The trial court had informed the prospective

jurors of Defendant’s affirmative defense of duress prior to the jury being empaneled.

      Because the affirmative defense of duress was asserted before Defendant

testified, the exclusion of Detective Regner’s answer is not governed by Mendoza. We

find no error in the admission of Detective Regner’s testimony of Defendant’s silence

to challenge her affirmative defense of duress from Warren’s threats and her asserted

possession of contraband under duress, after his arrest and removal.

                                   VI. Conclusion

      The trial court properly overruled Defendant’s objection and admitted

Detective Regner’s testimony of Defendant’s silence of Warren’s alleged threat.

Defendant received a fair trial, free from prejudicial errors she preserved and argued.

      We find no error in the jury’s verdicts or in the judgment entered thereon. It

is so ordered.

      NO ERROR.

      Judges BRYANT and ARROWOOD concur.



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