A split 2-1 panel of the N.C. Court of Appeals has ordered a new trial in the case of a man convicted in connection with his role in a Kannapolis police shootout.

The court’s majority judges agreed that a prosecutor violated defendant Brandon Scott Goins’ constitutional rights. During her closing argument, the prosecutor complained that Goins had pleaded not guilty to attempted murder. Judge Hunter Murphy writes in the majority opinion:

Our case law is unequivocal that the right to enter a plea of not guilty encompasses the right to be free from condemnation in front of a jury for making that choice. A defendant’s right to a fair trial is abridged by a prosecutor’s complaints before a jury during closing argument about the defendant’s decision to plead not guilty, and that is exactly what happened here.

Judge John Tyson dissented, noting that Goins’ lawyer never objected to the prosecutor’s statement during the trial.

During her closing argument, the prosecutor recited the evidence presented including Defendant avoiding his probation officer, possessing a gun as a convicted felon, and pulling and firing a gun on Officer Hinton in the hallway of the hotel full of people. She relayed the evidence offered that Defendant set up his shot and fired at Officer Hinton. The jury had heard testimony that Defendant had acquired “cop-killer” bullets, and viewed a videotape showing him shoot at Officer Hinton. The State presented overwhelming evidence of Defendant’s guilt. Defendant cannot show the prosecutor’s improper statements overcome this evidence to “amount to prejudice and reversible error.”

The split decision means the case is likely to head to the N.C. Supreme Court.