{ "id": 8301315, "name": "STATE OF NORTH CAROLINA v. CHAD EVRIST HERNDON", "name_abbreviation": "State v. Herndon", "decision_date": "2006-05-02", "docket_number": "No. COA05-724", "first_page": "353", "last_page": "364", "citations": [ { "type": "official", "cite": "177 N.C. App. 353" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "582 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "368", "parenthetical": "A jury's note in the first trial stating \"we can unanimously agree that minimally the defendant is guilty of 2nd degree murder\" was not binding on the second trial." } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188552 ], "year": 2003, "pin_cites": [ { "page": "575-76", "parenthetical": "A jury's note in the first trial stating \"we can unanimously agree that minimally the defendant is guilty of 2nd degree murder\" was not binding on the second trial." } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0563-01" ] }, { "cite": "293 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "79" }, { "page": "81" } ], "opinion_index": 0 }, { "cite": "306 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568322 ], "year": 1982, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0302-01" ] }, { "cite": "328 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "263" } ], "opinion_index": 0 }, { "cite": "313 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723196 ], "year": 1985, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0254-01" ] }, { "cite": "584 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "800", "parenthetical": "citation omitted" }, { "page": "800" } ], "opinion_index": 0 }, { "cite": "357 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491791 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "355", "parenthetical": "citation omitted" }, { "page": "355-56" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0345-01" ] }, { "cite": "205 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "329-30", "parenthetical": "evidence sufficient to support a verdict of voluntary manslaughter where the victim called the defendant a \"name\" and reached for a gun and the defendant grabbed the gun first and shot the victim" } ], "opinion_index": 0 }, { "cite": "22 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11298751 ], "year": 1974, "pin_cites": [ { "page": "23", "parenthetical": "evidence sufficient to support a verdict of voluntary manslaughter where the victim called the defendant a \"name\" and reached for a gun and the defendant grabbed the gun first and shot the victim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/22/0022-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "916", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "579", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "185 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "224", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "280 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569769 ], "year": 1971, "pin_cites": [ { "page": "55", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0051-01" ] }, { "cite": "392 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525243 ], "year": 1990, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0518-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378-79" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "holding that when Miranda warnings are given, \"it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.\"" }, { "parenthetical": "holding that when Miranda warnings are given, \"it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.\"" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "467 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "55-56", "parenthetical": "citing Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976) (holding that when Miranda warnings are given, \"it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.\")" } ], "opinion_index": 0 }, { "cite": "342 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796116 ], "year": 1996, "pin_cites": [ { "page": "519", "parenthetical": "citing Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0502-01" ] } ], "analysis": { "cardinality": 1011, "char_count": 26020, "ocr_confidence": 0.751, "pagerank": { "raw": 2.1309727172526261e-07, "percentile": 0.7658309422672905 }, "sha256": "543a9ff543ab8eac21a1629f5b1a550035c6e204b04c8ab0b1686a1041fcc83c", "simhash": "1:673e0e22b0154c4d", "word_count": 4215 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHAD EVRIST HERNDON" ], "opinions": [ { "text": "TYSON, Judge.\nChad Evrist Herndon (\u201cdefendant\u201d) appeals from judgment entered after a jury found him to be guilty of voluntary manslaughter. We find no error.\nI. Background\nIn late July 2001, defendant\u2019s girlfriend, Sherri Dail (\u201cDail\u201d) told defendant she was having an affair with Darren Locklear (\u201cthe victim\u201d), a married man. Defendant called the victim\u2019s wife, Yolanda Locklear, who told him she was also aware of her husband\u2019s affair with Dail.\nIn the early morning hours of 3 September 2001, Michael Shane Herndon (\u201cdefendant\u2019s brother\u201d) was present at a party at the home of Shmora Locklear (\u201cShmora\u201d). The victim also attended the party and was sitting at a table with a gun by his feet. Conflicting evidence was presented to show the victim had blocked defendant\u2019s brother\u2019s car and prevented him from leaving the party. Defendant\u2019s brother telephoned defendant, who drove to the party.\nConflicting evidence was also presented at trial regarding whether defendant was armed. Shmora testified defendant exited his vehicle with two guns and gave one gun to defendant\u2019s brother, but did not bring a gun into her residence. India Lowery, was present at Shmora\u2019s residence, and testified defendant exited the vehicle with a gun.\nDefendant\u2019s brother testified he never saw defendant with a gun. Defendant testified a gun was present in his vehicle, but he did not remove it. Guests at the party intervened and prevented a confrontation between defendant and the victim. Defendant and his brother left Shmora\u2019s residence. Defendant testified he received a threatening telephone call at his home from the victim later that morning.\nDefendant and Dail left and drove toward Fayetteville to purchase birthday party supplies for their two-year-old child. While en route, defendant\u2019s brother'telephoned defendant and told him the victim had called again and said \u201che was on his way over and he was going to shoot the house up and kill everybody back there.\u201d Defendant\u2019s brother informed, defendant that the victim had called from a Pembroke telephone number. Defendant turned around his vehicle, returned to his residence, picked up his brother, and drove toward Pembroke. Defendant testified \u201cthat means he was halfway from his house to mine. And he was actually coming over.\u201d\nThree witnesses testified to the events that occurred next: defendant, defendant\u2019s brother, and Shane Hunt (\u201cHunt\u201d), who was a passenger in the victim\u2019s vehicle that morning. As defendant drove towards Pembroke on Union Chapel Road, he saw a white Ford Expedition belonging to the victim driving toward him. Defendant drove into a vacant parking lot. The victim drove his vehicle off of the highway and parked in front of defendant\u2019s vehicle. Both defendant and the victim exited their vehicles. Defendant was unarmed.\nDefendant and defendant\u2019s brother testified that the victim pointed a gun at defendant\u2019s face and pulled the trigger, but the gun misfired. Hunt testified the victim did not point the gun at defendant. Lumberton police officer Lewis Woodard testified he found a spent casing in the chamber of the victim\u2019s gun. Undisputed evidence shows the victim struck defendant on his head with the gun. Defendant returned to his vehicle after being struck by the victim\u2019s gun. Defendant and his brother testified they saw the victim pulling the slide of his gun. Defendant entered his vehicle to leave the scene.\nDefendant and his brother\u2019s testimonies conflict with Hunt\u2019s testimony regarding the shooting. Hunt testified the victim said something similar to \u201cI knew you wasn\u2019t going to do nothing.\u201d Hunt also testified the victim turned around to return to his vehicle and defendant began shooting at the victim from the window of defendant\u2019s vehicle.\nDefendant and his brother testified that after defendant entered his vehicle, defendant\u2019s brother saw the victim walking towards defendant\u2019s vehicle and raise his gun. Defendant\u2019s brother told defendant, \u201cHe\u2019s getting ready to shoot.\u201d Defendant testified he grabbed his gun and observed the victim coming towards his vehicle and pointing a'gun at him. At that point, defendant \u201cjust started shooting\u201d at the victim from the window of his vehicle. Defendant testified he did not know where he hit the victim and did not see the victim after he stopped shooting. As defendant left the scene, Hunt emerged from the victim\u2019s vehicle holding a gun.\nDefendant stopped a black truck driving in the opposite direction. The truck was driven by Andy Scott (\u201cScott\u201d). Defendant told Scott that \u201che had just shot a boy and wanted [him] to call the ambulance.\u201d Defendant returned to his vehicle and told his girlfriend, Dail, to call the police and inform them that he was en route to the police station. Dail did not testify at trial.\nPembroke Police Officer John Veneziano (\u201cOfficer Veneziano\u201d) was off duty and driving down Union Chapel Road when he observed a white sport utility vehicle parked on the side of the road with a male lying on the ground on the driver\u2019s side. Officer Veneziano observed a gun located about five inches from the victim\u2019s right hand and a pool of blood gathering around his mid-section.\nRobeson County Sheriff\u2019s Deputy Hubert Brian Graham (\u201cDeputy Graham\u201d) testified he w,as dispatched to the scene of the shooting. While Deputy Graham was en route to the scene in a marked patrol car, he noticed defendant\u2019s vehicle pass him with flashing lights. Deputy Graham turned his vehicle around and defendant\u2019s'vehicle came to a stop. Defendant told Deputy Graham that he \u201cshot the person in Union Chapel.\u201d Deputy Graham put defendant into the back of his patrol car and removed two firearms from defendant\u2019s vehicle. Deputy Graham\u2019s First Sergeant told him to- turn defendant over to Pembroke police officers and proceed to the scene. Deputy Graham arrived on the scene shortly after the ambulance. Deputy Graham testified the victim was alive upon his arrival and that he heard the victim speak to EMS personnel.\nDr. Richard Johnson (\u201cDr. Johnson\u201d) appeared as a witness for the State as.an expert pathologist and testified that the autopsy he performed revealed five gunshot wounds on the victim\u2019s body. The victim received three shots to the back, one shot to the upper left buttocks, and one shot to the front of the right leg.\nDefendant was charged, and later indicted by a grand jury, for first-degree murder. Defendant was initially tried in March 2003 in Robeson County Superior Court. The trial court declared a mistrial on 11 March 2003 after the jury announced their inability to reach a unanimous verdict. Defendant was retried in August 2004 in Robeson County Superior Court. The jury found defendant to be guilty of voluntary manslaughter. The trial court sentenced defendant to a minimum term of fifty-seven months and a maximum term of seventy-eight months imprisonment. Defendant appeals.\nII. Issues\nDefendant argues: (1) the State\u2019s cross-examination and closing argument violated his right to remain silent; (2) insufficient evidence was presented to support the voluntary manslaughter verdict; and (3) the trial court erred in giving the jury an aggressor instruction after, an earlier jury had determined him not to be the aggressor.\nIII. Defendant\u2019s Right to Remain Silent\nDefendant argues a new trial is required because the State\u2019s cross-examination of him and its closing argument violated his right to remain silent. We disagree.\nA criminal defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, as incorporated and binding upon the states by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. U.S. Const, amend. V; U.S. Const, amend. XIV; N.C. Const, art. I, sec. 23. \u201cA defendant\u2019s silence after receiving Miranda warnings cannot be used against him as evidence of guilt.\u201d State v. Best, 342 N.C. 502, 519, 467 S.E.2d 45, 55-56 (1996) (citing Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976) (holding that when Miranda warnings are given, \u201cit would be fundamentally unfair and a deprivation of due process to allow the arrested person\u2019s silence to be used to impeach an explanation subsequently offered at trial.\u201d)).\nA. Cross-Examination\nDefendant asserts the State improperly questioned him about invoking his right to silence. The transcript shows the following exchange occurred during the State\u2019s cross-examination of defendant:\nQ: You have had plenty of time to get this story straight with your brother, have you not?\nA: It\u2019s the same thing I testified to last time.\nQ: Have you had a lot of time to get your story straight with your brother?\nA: If we had to get the story straight.\nDefense Counsel: Object. Object.\nThe Court: Well, Mr. Herndon, answer the question if you can, and then you may explain your answer within the context and the boundaries of the question.\nDefense Counsel: Well, I object to the form of the question, your Honor.\nThe Court: Overruled.\nThe Witness: Could you repeat your question again, sir?\nQ: When was the first time that you ever told the story that you told in the last proceedings?\nA: To my attorney, Angus Thompson, the next day.\nQ: Not the police?\nA: Excuse me?\nQ: Not the police?\nA: I was already charged with murder.\nQ: So you didn\u2019t want to tell them that you had acted in self-defense?\nA: I was already charged with murder.\nWhen the State repeated the last question, defense counsel objected. After the trial court overruled defendant\u2019s objection, defense counsel requested a bench conference at which he argued that the question violated defendant\u2019s Fifth and Sixth Amendment rights. During the course of the bench conference, the prosecutor withdrew his question.\nPresuming defendant\u2019s objection properly preserved for review a challenge to the prior questions and answers, it is not apparent that the State was commenting on post-Miranda, silence when the testimony is reviewed in context. Defendant testified on direct examination he told Officer Graham prior to being taken into custody someone had tried to kill him and that he had to shoot. On cross-examination, the State pointed out that Officer Graham had testified that defendant had never mentioned anyone was trying to kill him. The State asked why Deputy Graham would lie on the stand. Defendant claimed that Graham was lying at the request of a third party. In following up on this contention, the State then asked \u201c[w]hen was the first time that you ever told the story that you told in the last proceedings,\u201d referring to the claim of self-defense. Defendant did not claim he had first asserted self defense to Deputy Graham, but rather testified he had first told \u201cthe story\u201d to his attorney the day after the shooting. As his counsel was objecting, defendant apparently realized what question was being asked and attempted to testify, first \u201cI did tell,\u201d and then again, \u201cI did.\u201d\nDefendant has failed to show any error occurred. If the questioning related to defendant\u2019s conversation with Deputy Graham on the day of the shooting, post -Miranda silence was not implicated. Defense counsel failed to object to the initial questions and any later objection regarding the State\u2019s initial questions was not preserved for appellate review. Regarding the final question asked by the State since that question was withdrawn and defendant made no further objections or motions to these questions, there is no error to review. This assignment of error is dismissed.\nB. Closing Argument\nDefendant argues the trial court erred by failing to. intervene during certain portions of the State\u2019s closing argument ex mero motu. Defendant asserts the State improperly referred \u201cto' [defendant\u2019s] exercise of the right to remain silent\u201d and was \u201casking the jury to discount [defendant\u2019s] testimony.\u201d Our review of the transcript does not support this assertion. To the contrary, the State was plainly referring to defendant\u2019s brother\u2019s, testimony and defendant\u2019s girlfriend\u2019s failure to support defendant\u2019s version of the facts.\nThe State stressed in its cross-examination of defendant\u2019s brother that he did not tell the police that defendant had acted in self-defense:\nQ, Did you ever tell the police officers the story that you\u2019ve told in here today?\nA. No, sir, nobody never asked me either.\nQ. Your brother was in jail after he was charged, is that right?\nA. Yes, sir.\nQ. Was it because that you had to have time in order to get your story straight and that\u2019s the reason that you told no police officer within that 30 days or any time thereafter the story that you\u2019ve told in here today?\nA. It was just nobody never asked, sir.\nQ. But you were asked, sir, to tell us what you saw.\nA. You asked me, sir, if I wanted to say anything.\nQ. And you said no.-\nA. I said no, sir.\nQ. That was your opportunity. Someone did ask you to tell what you saw.\nA. Well\u2014\nQ. And you refused?\nA. There was another opportunity, too, sir.\nThe State later called the detective in charge of the investigation who testified that he went to see Michael Shane Herndon and defendant\u2019s girlfriend and unsuccessfully attempted to obtain a statement from either of them on the day of defendant\u2019s arrest.\nDuring its closing argument, the State first pointed out that defendant\u2019s girlfriend, Dail, \u201cwas an eye witness to this killing; and yet, [she] hasn\u2019t said a word. . . . Why is that?\u201d Then, the State argued:\nPrior to testifying, Michael Shane Herndon says not one word to the police about self-defense. Why not? Do you really think that if they thought this was a self-defense case, you couldn\u2019t have shut them up. They\u2019d been down at the police station, \u201cI want to give a statement, I want to give a statement.\u201d But they didn\u2019t do it. They didn\u2019t say, \u201cHey, look, you know, my brother\u2019s not guilty, or \u201cMy boyfriend\u2019s not guilty. It was self-defense.\u201d When was it that Shane Hunt gave his statement telling what he saw? The very day. That afternoon. Because he didn\u2019t have to have time to make up a defense or make up evidence.\nDefendant\u2019s challenge to the State\u2019s closing argument immediately follows this commentary on defendant\u2019s brother\u2019s and Dail\u2019s failure to tell the police that defendant acted in self-defense:\nNow, the defendant gets the evidence that the State has. Have to give them everything we\u2019ve got. He waits and tailors his testimony to what the evidence is. And it comes down to whether you believe Shane Hunt, or whether you now believe the defendant.\nIn context, this portion of the closing argument does not necessarily refer to any post-Miranda silence by defendant, but to the refusal of some eyewitnesses and the willingness of another to give statements to the investigators on the day of the shooting.\nThe subsequent portion challenged by defendant the State asked the jury to:\nconsider, when you\u2019re considering that evidence, when these stories of what happened, when those came out, the timing of when they came out, and that should play a large role in you deciding what weight that you\u2019re going to give someone\u2019s testimony. Decide when it was the people said \u201cOh, this is what happened\u201d because that, ladies and gentlemen, says a lot about who\u2019s telling you the truth.\nThis closing argument is supported by the cross-examination of defendant\u2019s brother, the direct examination of the investigating detective, and the earlier argument regarding defendant\u2019s brother and Dail. In the context of the closing arguments, these statements do not necessarily refer to defendant\u2019s post-Miranda silence. The trial court did not err in failing to intervene in the closing argument ex mero mo tu. This assignment of error is overruled.\nIV. Sufficiency of the Evidence: Voluntary Manslaughter\nDefendant argues the trial court erred in instructing the jury on voluntary manslaughter because the evidence supported only one of two verdicts: guilty of first-degree murder or not guilty of any crime. We disagree.\nThe trial court instructed the jury on first-degree murder, second degree murder, voluntary manslaughter, self-defense, and defense of others. The verdict sheet gave the jury the choice of finding defendant guilty of first-degree murder, second degree murder, voluntary manslaughter, or not guilty.\nDefense counsel failed to object to the submission of the voluntary manslaughter instruction. Our review is limited to plain error. State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378 (1983). \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d Id. at 661, 300 S.E.2d at 378-79.\nDefendant argues the submission of a voluntary manslaughter instruction to the jury had a probable impact on the jury\u2019s finding of guilt because \u201cthe submission of a lesser included offense in the absence of substantial evidence to support the lesser verdict, invites jurors to disregard their oaths and to reach verdicts by compromise.\u201d State v. Arnold, 98 N.C. App. 518, 530, 392 S.E.2d 140, 148 (1990). We disagree.\n\u201cVoluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation.\u201d State v. Rummage, 280 N.C. 51, 55, 185 S.E.2d 221, 224 (1971) (citations omitted).\nGenerally voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force under the circumstances is employed or where the defendant is the aggressor bringing on the affray. Although a killing under these circumstances is both unlawful and intentional, the circumstances themselves are said to displace malice and to reduce the offense from murder to manslaughter.\nState v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978) (emphasis supplied) (citations omitted).\nHere, defendant\u2019s own evidence tends to show the elements of imperfect self-defense. Defendant and defendant\u2019s brother testified the victim pointed a gun at defendant and attempted to fire. The victim then struck defendant on the head with the gun. After defendant retreated to his vehicle, defendant and defendant\u2019s brother testified the victim walked towards defendant\u2019s vehicle and raised his gun. Defendant\u2019s brother remarked, \u201cHe\u2019s getting ready to shoot.\u201d\nDr. Johnson testified the victim received five gunshot wounds, three to the back, one to the buttocks, and one to the front of his right leg. Defendant testified he did not know where he shot the victim and did not see the victim after he shot. Substantial evidence was presented from which a rational trier of fact could find defendant employed excessive force in shooting the victim five times with three shots striking the victim in the back and buttocks while acting in self-defense. Id.\nBased upon the evidence presented, the trial court\u2019s submission of a voluntary manslaughter instruction to the jury was not plain or prejudicial error. See State v. Walker, 22 N.C. App. 22, 23, 205 S.E.2d 328, 329-30 (1974) (evidence sufficient to support a verdict of voluntary manslaughter where the victim called the defendant a \u201cname\u201d and reached for a gun and the defendant grabbed the gun first and shot the victim). This assignment of error is overruled.\nV. Aggressor Instruction\nDefendant argues the trial court also committed plain error in giving the jury an aggressor instruction where an earlier jury previously determined defendant not to be the aggressor. We disagree.\nDuring jury deliberations at defendant\u2019s first trial, the jury sent a note to the judge that stated, \u201cWe came to the agreement that he was not the aggressor. Chad did not go there to kill Locklear. We have 9 not guilty [and] 3 manslauter (sic) . . . .\u201d The jury at defendant\u2019s first trial failed to reach a unanimous verdict and the trial court declared a mistrial.\nDefendant contends that, \u201conce a jury has conclusively determined the existence or nonexistence of a fact, the [S]tate is collaterally estopped under the Double Jeopardy Clause from relitigating that same issue in a second criminal proceeding.\u201d State v. Carter, 357 N.C. 345, 355, 584 S.E.2d 792, 800 (2003) (citation omitted). In State v. Warren, our Supreme Court stated, \u201c \u2018Collateral estoppel\u2019 means that once an issue of ultimate fact has been determined by a valid and final judgment, that issue may not be relitigated by the same parties in a subsequent action.\u201d 313 N.C. 254, 264, 328 S.E.2d 256, 263 (1985). \u201cDefendant has the burden of demonstrating that the issue he seeks to foreclose from relitigation was actually decided in the previous proceeding.\u201d Carter, 357 N.C. at 355-56, 584 S.E.2d at 800.\nIn State v. Booker, the foreman of the jury during the defendant\u2019s first trial sent a note to the trial judge which stated that the jury was deadlocked seven to five in favor of a verdict of guilty of second degree murder. 306 N.C. 302, 304, 293 S.E.2d 78, 79 (1982). Our Supreme Court held that the jury did not return a final verdict. Id. at 307, 293 S.E.2d at 81; see N.C. Gen. Stat. \u00a7 15A-1237(a) (\u201cThe verdict must be in writing, signed by the foreman, and made a part of the record of the case.\u201d); see also State v. Mays, 158 N.C. App. 563, 575-76, 582 S.E.2d 360, 368 (2003) (A jury\u2019s note in the first trial stating \u201cwe can unanimously agree that minimally the defendant is guilty of 2nd degree murder\u201d was not binding on the second trial.)\nHere, the doctrine of collateral estoppel does not apply. No unanimous verdict was reached by the jury whether or not defendant was the aggressor. Id. The note from the prior jury demonstrated a moment in time during the jury deliberations and was not a final verdict for collateral estoppel to apply or jeopardy to attach. This assignment of error is overruled.\nVI. Conclusion\nDefendant failed to show the State\u2019s cross-examination and closing argument improperly commented upon and violated his right to remain silent under the Fifth Amendment. Defendant failed to show the State\u2019s cross-examination and closing argument violated his right to remain silent.\nSufficient evidence was presented to support the jury instruction on voluntary manslaughter. The trial court did not commit plain error in submitting voluntary manslaughter or an aggressor instruction to the jury to warrant a new trial. Defendant received a fair trial free from prejudicial or plain errors he assigned and argued.\nNO ERROR.\nJudges HUDSON and GEER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHAD EVRIST HERNDON\nNo. COA05-724\n(Filed 2 May 2006)\n1. Evidence\u2014 cross-examination \u2014 right to rentain silent\nThe prosecution was not improperly permitted to cross-examine defendant in a voluntary manslaughter case even though defendant contends it violated his right to remain silent, because: (1) assuming defendant\u2019s objection properly preserved for review a challenge to the pertinent questions and answers, it is not apparent that the State was commenting on post-Miranda silence when the testimony is reviewed in context; (2) if the questioning related to defendant\u2019s conversation with a deputy on the day of the shooting, post-Miranda silence was not implicated; and (3) defense counsel failed to object to the initial questions and any later objection regarding the State\u2019s initial questions was not preserved for appellate review.\n2. Criminal Law\u2014 prosecutor\u2019s argument \u2014 defendant\u2019s right to remain silent\nThe trial court did not err in a voluntary manslaughter case by failing to intervene ex mero motu during certain portions of . the State\u2019s closing argument where defendant contends the State improperly referred to defendant\u2019s exercise of the right to remain silent and asked the jury to discount defendant\u2019s testimony, because: (1) contrary to defendant\u2019s assertion, the State was referring to the testimony of his brother and his girlfriend\u2019s failure to support defendant\u2019s version of the facts; (2) taken in context, the pertinent portion of the closing argument does not necessarily refer to any post-Miranda silence by defendant, but to the refusal of some eyewitnesses and the willingness of another to give statements to the investigators on the day of the shooting; and (3) the other pertinent portion of the closing argument was supported by the cross-examination of defendant\u2019s brother, the direct examination of the investigating detective, and the earlier argument regarding defendant\u2019s brother and his girlfriend.\n3. Homicide\u2014 instruction \u2014 voluntary manslaughter\nThe trial court did not commit plain error by instructing the jury on voluntary manslaughter in addition to first-degree murder, second-degree murder, self-defense, and defense of others, because: (1) defendant\u2019s own evidence tends to show the elements of imperfect self-defense; and (2) substantial evidence was presented from which a rational trier of fact could find defendant employed excessive force in shooting the victim five times with three shots striking the victim in the back and buttocks while acting in self-defense.\n4. Criminal Law\u2014 instruction \u2014 aggressor\u2014collateral estop-pel \u2014 double jeopardy\nThe trial court did not commit plain error in a voluntary manslaughter case by giving the jury an aggressor instruction where an earlier jury in defendant\u2019s first trial allegedly previously determined he was not the aggressor, because: (1) the doctrine of collateral estoppel did not apply, nor did jeopardy attach, when no unanimous verdict was reached by the earlier jury about whether defendant was the aggressor; and (2) the note from the prior jury stating' it had determined that defendant was not the aggressor merely demonstrated a moment in time during the jury deliberations.\nAppeal by defendant from judgment entered 23 August 2004 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 26 January 2006.\nAttorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." }, "file_name": "0353-01", "first_page_order": 387, "last_page_order": 398 }