Background
On the evening of December 29, 2020, Barry Broadway strangled his girlfriend, Shayla Prioleau, inside her Charlotte townhouse. Broadway choked her multiple times, told investigators he watched her lose consciousness and then choked her again, and she was found covered in blood. Prioleau sustained bilateral carotid artery dissections placing her at risk of stroke and brain damage, a comminuted fracture of her cheekbone requiring reconstructive surgery and permanent titanium plates, and multiple lacerations requiring staples and stitches. A rifle with blood on it was found in the bathroom; unfired cartridges were found on the bathroom floor and in another upstairs bedroom. Broadway did not stop Prioleau from leaving the scene, and she drove to her mother’s home before collapsing.
Broadway was convicted in Mecklenburg County Superior Court of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) under N.C. Gen. Stat. § 14-32(a), assault inflicting serious bodily injury (AISBI) under N.C. Gen. Stat. § 14-32.4(b), and assault inflicting serious injury by strangulation. The trial court arrested judgment on the strangulation count but sentenced Broadway to consecutive terms totaling approximately 246 to 330 months on the remaining charges. On appeal, Broadway raised three issues: (1) the State’s closing argument, specifically a prosecutor who held her breath for one minute to demonstrate the duration of loss of consciousness during strangulation, was so grossly improper that the trial court should have intervened ex mero motu; (2) the trial court erred by not instructing the jury on assault inflicting serious injury as a lesser-included offense of AWDWIKISI; and (3) convicting and sentencing Broadway for both AWDWIKISI and AISBI based on the same conduct violated double jeopardy.
The Court’s Holding
The Court of Appeals affirmed the convictions except for the AISBI count, as to which it arrested judgment and remanded for resentencing.
On the closing-argument issue, the court applied the demanding “grossly improper” standard that governs unobjected-to prosecutorial arguments. See State v. Jones, 355 N.C. 117, 133 (2002). The prosecutor’s one-minute breath-holding demonstration was tied to the testimony of a nurse who stated strangulation victims can stop breathing after 57 to 60 seconds; the demonstration illustrated the time Broadway had to form specific intent while maintaining pressure on Prioleau’s neck, and was therefore grounded in evidence and relevant to the element of premeditation and deliberation. Prior North Carolina authority permits timed demonstrations in closing. See State v. Jones, 346 N.C. 704, 712–13 (1997) (five-minute silence to illustrate stabbing); State v. Perez, 135 N.C. App. 543, 553–54 (1999) (four-to-five-minute silence for strangulation). The prosecutor’s separate statements describing the facts and outcomes of three other appellate decisions were improper under State v. Anthony, 354 N.C. 372, 430 (2001), but did not rise to the level requiring ex mero motu intervention given the overwhelming evidence of guilt.
On the lesser-included-offense instruction, the court found no error. The State’s evidence was positive and uncontradicted that Broadway used a deadly weapon: his manual strangulation caused bilateral carotid dissections risking stroke and brain damage, and his blows shattered Prioleau’s cheekbone into floating fragments. Under State v. Millsaps, 356 N.C. 556 (2002), where the State’s evidence is uncontradicted as to all elements of the greater offense, a lesser-included instruction is not required. The fact that the trial court submitted the deadly-weapon question to the jury did not create an obligation to provide a lesser option the evidence did not support.
On double jeopardy, the court held that AISBI merges with AWDWIKISI. N.C. Gen. Stat. § 14-32.4(b) expressly provides that AISBI cannot be charged “if the conduct is covered under some other provision of law providing greater punishment.” AWDWIKISI carries greater punishment. The exception — that dual punishment is permissible when there is a “distinct interruption” in the assault, State v. Robinson, 381 N.C. 207, 218 (2022) — did not apply here: different injuries inflicted on the victim are insufficient by themselves; there must be an “intervening event, a lapse of time in which a reasonable person may calm down, an interruption in the momentum of the attack, a change in location, or some other clear break.” Because neither the indictments nor the jury instructions distinguished between the blunt-force trauma and the strangulation episodes, and because there was no evidence of any timeline of events after Prioleau lost consciousness, no distinct interruption was established.
Key Takeaways
- AISBI (N.C. Gen. Stat. § 14-32.4(b)) merges with AWDWIKISI (§ 14-32(a)) under the double jeopardy clause when both charges arise from the same conduct; the State must establish a “distinct interruption” in the assault to support dual punishment.
- Multiple distinct injuries inflicted during a single continuous assault are not, by themselves, sufficient evidence of a distinct interruption — magnitude of harm can inform sentencing but cannot justify stacking charges without evidence of a true break in the attack.
- A prosecutor’s timed closing-argument demonstration is permissible when grounded in record evidence and used to illustrate a specific element (such as premeditation); it is not “grossly improper” merely because it is viscerally affecting.
- Citing the facts and outcomes of other cases during closing argument — as opposed to citing legal principles — is improper under Anthony, but will not compel reversal if it does not infect the trial with fundamental unfairness given the overall strength of the evidence.
- A trial court’s decision to send the deadly-weapon question to the jury on AWDWIKISI does not automatically require a lesser-included instruction on assault inflicting serious injury if the State’s evidence of deadly-weapon use is otherwise positive and uncontradicted.
Why It Matters
Domestic violence prosecutions in Mecklenburg County and across North Carolina frequently charge both AWDWIKISI and AISBI arising from the same violent episode. Broadway provides definitive guidance on when those charges merge: absent a demonstrable break in the assault — such as a change in location, an intervening event, or a temporal gap the record can document — the AISBI conviction must yield. Practitioners should note that the “distinct interruption” inquiry is fact-intensive and cannot be supplied by the mere presence of multiple injury types. The State should either obtain indictments and jury instructions that clearly delineate separate criminal acts or be prepared to have one count arrested on appeal.
The closing-argument holdings also clarify the outer limits of permissible courtroom theatrics in North Carolina. Demonstrations tied to evidence and relevant to a contested element (here, time to form intent during strangulation) pass the ex mero motu threshold. Reading the facts and verdicts of other cases as an implicit argument that the jury should match those outcomes does not — but it is subject only to the demanding grossly-improper standard when not objected to at trial. Defense counsel should preserve this objection contemporaneously to preserve a stronger standard of review.