In July of 2026, the North Carolina Court of Appeals filed its opinion in the case of The State of North Carolina v. Barry Boyd Broadway out of Mecklenburg County. This is an assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and assault inflicting serious bodily injury (AISBI) case in which several trial and appellate procedure issues were brought before the appellate court.
Mr. Broadway was in a dating relationship with Ms. Prioleau. At the time of the incident, the two of them had been living together in Ms. Prioleau’s townhouse for about one month. One evening in late December of 2020, the two had an argument. The argument became physical and Mr. Broadway strangled Ms. Prioleau to the point that she lost consciousness. When she awoke, Ms. Prioleau was covered in blood. Ms. Prioleau did not remember being struck nor did she remember seeing a gun during the incident. Shortly after waking up, Ms. Prioleau left the townhouse and drove to her mother’s home. Mr. Broadway did not try to stop her from leaving. When she arrived at her mother’s, Ms. Prioleau collapsed. EMS was called and transported Ms. Prioleau to the hospital. The hospital examination revealed that Ms. Prioleau had suffered several serious injuries. She suffered a fractured cheekbone that required reconstructive surgery. She had multiple lacerations on her face and head as well as significant swelling and bruising. She also suffered carotid artery dissections which created a risk of stroke and brain damage. The next day Mr. Prioleau’s mother and brother confronted Mr. Broadway and video recorded the exchange. Mr. Broadway admitted strangling Ms. Prioleau three times and waited for her to start breathing before strangling her again. Mr. Broadway was arrested shortly after. Law enforcement also conducted a search of Ms. Prioleau’s townhouse where they found blood throughout the bathroom, a rifle against the bathroom wall with blood on it, bloody clothing, and two unfired cartridges.
Mr. Broadway’s trial took place in May of 2025. After trial, Mr. Broadway was convicted of attempted first-degree murder, AWDWIKISI, AISBI, and assault inflicting serious injury by strangulation. Mr. Broadway gave timely notice of appeal.
The Court of Appeals addressed an issue of appellate procedure early in its opinion. The State made a motion to submit an affidavit to the settled record. This affidavit would contradict information that was contained in the certified transcript of the trial proceedings. The Court of Appeals disallowed the State’s motion primarily because it was raised after the record was settled and because It presented information that was contrary to information contained in the settled record.
In the remainder of the opinion, the Court of Appeals addressed three issues that Mr. Broadway raised in his appeal. First, Mr. Broadway argued that the trial court should have intervened ex mero motu during the State’s closing argument. Next, the Court addressed Mr. Broadway’s position that the trial court should have instructed the jury on assault inflicting serious injury as a lesser included offense of AWDWIKISI. Finally, the Court analyzed whether or not the double jeopardy clause prohibited Mr. Broadway from being punished for both AWDWIKISI and AISBI. Each of these will be explored further below.
During the trial, Mr. Broadway did not object during the State’s closing argument. However, on appeal, he argued that the trial court committed reversible error by not intervening ex mero muto during the State’s closing. Because no objection was raised at trial, the standard of review that the Court Appeals applied to this issue was whether the State’s remarks were so grossly improper that it was reversible error for the trial court to not intervene ex mero muto. At issue here is during its closing, the State used a timer to demonstrate the time that it takes for respiration to cease during strangulation. The prosecutor set a timer for one minute and held her breath until the timer went off. Mr. Broadway contended that this demonstration was improper. The Court of Appeals determined that the demonstration did not rise to the level of being grossly improper such that ex mero muto intervention was necessary. That the trial court was able to observe the impact of the demonstration without objection from Mr. Broadway, the Court of Appeals determined that this argument was without merit. Also, during closing, the prosecutor stated that Mr. Broadway beat Ms. Prioleau after she was unconscious with his fist or against objects and went to get his rifle from another room while she was unconscious. The appellate Court determined that these statements were within the latitude that is permissible during closing and that ex mero muto intervention was not necessary.
The court went on to the determine whether or not there was a basis for the trial court to instruct the jury on assault inflicting serious injury as a lesser included offense of AWDWIKISI. Mr. Broadway hinges this argument on the proposition that based on the evidence present at trial, the jury could rationally find that his hands were not deadly weapons. An appellate court conducts a de novo review of a trial court’s decision not to provide a requested jury instruction on a lesser included offense. The trial court is to instruct the jury on a lesser included offense when and only when the jury could find that there is evidence that a defendant committed the lesser included offense. An instruction on a lesser included offense is not required where there is positive evidence with respect to each element of the charged offense and there is no contradictory evidence pertaining to any element. In making the determination on whether an instruction on a lesser included offense should have been given, the Court reviews the evidence in the light most favorable to the defendant. In the instance case, primarily based on the nature and severity of the injuries sustained by Ms. Prioleau, those injuries put her at risk of brain damage or stroke. It is not a requirement that a deadly weapon must kill. But rather whether its use under the circumstances is likely to result in death or great bodily harm. The Court determined that even when viewed in the light most favorable to Mr. Broadway, there was no rational basis for the jury to conclude that he committed an assault inflicting serious injury but did not use a deadly weapon. The Court consequently determined that the trial court was not required to instruct on the lesser included offense.
Finally, the Court turned its attention on whether or not the double jeopardy clause prohibited Mr. Broadway from being punished for both AWDWIKISI and AISBI. Under the North Carolina statutes, AISBI merges with AWDWIKISI if both emanate from the same conduct or course of action. If there is some intervening event or an intervening time span between the actions, then double jeopardy would not apply and punishment for both would be possible. Here the State argues that Mr. Broadway was being punished for two separate actions and therefore the double jeopardy clause does not apply. The State argues that the injuries that Ms. Prioleau sustained as a result of blunt force trauma were from an action separate and apart from the injuries that resulted from the strangulation. Therefore, in the opinion of the State, Mr. Broadway is lawfully being punished for two separate actions. However, the Court disagreed with this line of thinking and determined that there was insufficient evidence to show that a distinct interruption occurred between the resulting injuries. Therefore, the double jeopardy clause was applicable and Mr. Broadway could not be punished for both the AWDWIKISI and AISBI.
In its final analysis, the North Court of Appeals in a unanimous decision ruled that the trial court did not err by refraining from intervening ex mero muto during the State’s closing argument and by choosing not to instruct the jury on the lesser included offense. However, because the double jeopardy clause did apply with respect to the AISBI conviction, judgment was arrested as to this conviction and the case was remanded for resentencing.
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