               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
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                                   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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                                     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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             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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                    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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      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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NO PLAIN ERROR.

Judges CALABRIA and ZACHARY concur.




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