State v. DeGraffenried

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 18-37
Filed: 6 November 2018
Guilford County, No. 16 CRS 85209
STATE OF NORTH CAROLINA
v.
DWAYNE RAYSHON DEGRAFFENRIED
Appeal by defendant from judgment entered 23 August 2017 by Judge L. Todd
Burke in Guilford County Superior Court. Heard in the Court of Appeals 17 October
2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General E. Burke
Haywood, for the State.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-
appellant.
TYSON, Judge.
Dwayne Rayshon Degraffenried (“Defendant”) appeals from a judgment
entered upon jury verdicts finding him guilty of trafficking cocaine by transportation
and trafficking cocaine by possession. We find no error.
I. Background
Guilford County sheriff’s deputies entered the home of Jamie Yarborough to
execute a search warrant they had obtained after several weeks of prior observation
and surveillance. The search yielded approximately 28 grams of cocaine inside
STATE V. DEGRAFFENRIED
Opinion of the Court
Yarborough’s home. Greensboro Police officers arrived to participate in the
investigation after the seizure of the cocaine.
Immediately after his arrest, Yarborough volunteered to contact his supplier,
who officers later identified as Defendant. Yarborough called Defendant and
requested he deliver approximately nine ounces of cocaine to Yarborough’s home.
Defendant arrived alone carrying a black drawstring bag. A sheriff’s deputy deployed
a “flash bang” to disorient Defendant and Yarborough, which caused both men to fall
to the ground. Defendant, along with the black bag he carried, and Yarborough were
taken into custody.
A North Carolina State Crime Lab forensic scientist later tested the white
powder found inside the black bag carried by Defendant and determined it contained
248.25 grams of cocaine. Defendant was indicted for trafficking by possessing 200 or
more but less than 400 grams of cocaine, and trafficking by transporting 200 or more
but less than 400 grams of cocaine.
During closing arguments, the prosecutor, without objection, made references
to Defendant’s right to a jury trial and noted he had exercised that right despite “[a]ll
of the evidence” being against him. The jury returned verdicts finding Defendant
guilty of both charges. The court consolidated the offenses and sentenced Defendant
to a minimum of 70 months and a maximum of 93 months of imprisonment.
Defendant filed written notice of appeal the same day.
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STATE V. DEGRAFFENRIED
Opinion of the Court
II. Jurisdiction
Jurisdiction lies in this Court from final judgment of the superior court entered
upon the jury’s verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a)
(2017).
III. Issue
Defendant argues the trial court erred by failing to intervene ex mero motu
during the State’s closing argument.
IV. Standard of Review
The standard of review for assessing alleged improper
closing arguments that fail to provoke timely objection
from opposing counsel is whether the remarks were so
grossly improper that the trial court committed reversible
error by failing to intervene ex mero motu. Under this
standard, [o]nly an extreme impropriety on the part of the
prosecutor will compel this Court to hold that the trial
judge abused his discretion in not recognizing and
correcting ex mero motu an argument that defense counsel
apparently did not believe was prejudicial when originally
spoken. To establish such an abuse, defendant must show
that the prosecutor’s comments so infected the trial with
unfairness that they rendered the conviction
fundamentally unfair.
State v. Waring, 364 N.C. 443, 499-500, 701 S.E.2d 615, 650 (2010) (internal quotation
marks and citations omitted), cert. denied, 565 U.S. 832, 181 L. Ed. 2d 53 (2011).
V. Analysis
North Carolina General Statutes require of an attorney in closing arguments
that:
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STATE V. DEGRAFFENRIED
Opinion of the Court
an attorney may not become abusive, inject his personal
experiences, express his personal belief as to the truth or
falsity of the evidence or as to the guilt or innocence of the
defendant, or make arguments on the basis of matters
outside the record except for matters concerning which the
court may take judicial notice.
N.C. Gen. Stat. § 15A-1230(a) (2017). We tender this statute to all counsel for review
and compliance therewith as officers of the court.
“[A] criminal defendant has a constitutional right to plead not guilty and be
tried by a jury. Reference by the State to a defendant’s failure to plead guilty violates
his constitutional right to a jury trial.” State v. Larry, 345 N.C. 497, 524, 481 S.E.2d
907, 923, cert. denied, 522 U.S. 917, 139 L. Ed. 2d 234 (1997) (internal citations
omitted). Defendant challenges the following portion of the State’s closing argument
as an improper reference to his exercise of his right to a jury trial:
Truth be told, some cases, ladies and gentlemen, are
tried because there is a genuine question with regard to the
facts; one side claims this and the other side claims that. I
would suggest, ladies and gentlemen, that that is not our
scenario.
Some cases are tried when there is a genuine
question regarding the application of the law. There’s a
consensus about what actually occurred, but one side
claims that it was not a violation of the law and the other
side claims that it was. And this, again, ladies and
gentlemen, is certainly not the case in our instance.
All of the evidence is that the defendant knowingly
possessed cocaine and transported it from one place to
another. So[,] the question is, why is this case being tried.
I would respectfully submit, ladies and gentlemen, it is
because the defendant is facing a mandatory prison term.
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STATE V. DEGRAFFENRIED
Opinion of the Court
Simply put, the defendant is looking to exercise his
right to a trial by jury, and he is entitled. Under our system
of justice, one cannot be stripped of their liberty without
due process of law. He wants a trial and he is granted a
trial.
“[W]hen defense counsel fails to object to the prosecutor’s improper argument
and the trial court fails to intervene, the standard of review requires a two-step
analytical inquiry: (1) whether the argument was improper; and, if so, (2) whether
the argument was so grossly improper as to impede the defendant’s right to a fair
trial.” State v. Huey, 370 N.C. 174, 179, 804 S.E.2d 464, 469 (2017). Only where this
Court “finds both an improper argument and prejudice will this Court conclude that
the error merits appropriate relief.” Id. (emphasis supplied)
“[I]t is not enough that the prosecutors’ remarks were undesirable or even
universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144,
157 (1986) (citation and internal quotation marks omitted). The “relevant question
is whether the prosecutors’ comments so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” Id. (citation and internal quotation
marks omitted).
The prosecutor’s comments were improper and satisfy the first prong of Huey.
370 N.C. at 179, 804 S.E.2d at 469. Counsel is admonished for minimalizing and
referring to Defendant’s exercise of his right to a trial by jury in a condescending
manner.
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Opinion of the Court
Moving to the second step, Defendant has failed to show any reversible error
by the trial court’s failure to intervene ex mero motu under the second prong of Huey.
Id. Where overwhelming evidence of the defendant’s guilt exists, our appellate courts
“have not found statements that are improper [in and of themselves] to amount to
prejudice and reversible error.” Id. at 181, 804 S.E.2d at 470.
The evidence of Defendant’s guilt was overwhelming. Yarborough identified
Defendant as his cocaine supplier. Yarborough, in cooperation with sheriff’s deputies
and police officers, called Defendant to ask for another delivery of cocaine.
Defendant arrived alone at Yarborough’s home and was apprehended with a
black drawstring bag, which was later determined to contain almost 250 grams of
cocaine. While the comments were improper, Defendant has failed to show the
prosecutor’s comments were so prejudicial to render Defendant’s trial fundamentally
unfair and to warrant the trial court’s ex mero motu intervention in the absence of
any objection. This argument is overruled.
VI. Conclusion
The trial court did not commit plain error by declining to intervene ex mero
motu during the State’s closing argument in the absence of Defendant’s failure to
object or preserve error. Defendant received a fair trial, free from preserved or
prejudicial error. We find no error in the jury’s verdict or in the judgment entered
thereon. It is so ordered.
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STATE V. DEGRAFFENRIED
Opinion of the Court
NO PLAIN ERROR.
Judges CALABRIA and ZACHARY concur.
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