State v Graham
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA10-841 NORTH CAROLINA COURT OF APPEALS Filed: 1 March 2011 STATE OF NORTH CAROLINA v. Forsyth County Nos. 07 CRS 60435, 08 CRS 8912 SHAMAN RAMAR GRAHAM Appeal by defendant from judgment entered 10 March 2010 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 11 January 2011. Attorney General Roy Cooper, by Assistant Attorney General Teresa L. Townsend, for the State. Charlotte Gail Blake for defendant-appellant. BRYANT, Judge. Where there was no error, let alone prejudicial error in witness testimony, the trial court did not abuse its discretion in denying defendant s motion for a mistrial. Facts On 17 October 2007, Winston-Salem police officers executed a search warrant at the home where defendant Shaman Ramar Graham resided with children. his girlfriend, Kelia Brim, and her mother and Defendant was not at the home when the search was conducted, but officers arrested him on an unrelated warrant later that day when he returned home. Officers found nothing in the -2home, but noticed a car in the yard which was identified by Ms. Brim as belonging to defendant. keys to the car on his person. After his arrest, officers found Officers then searched the car and found cocaine, clear bags, razor blades and a digital scale in the glove compartment. Defendant was indicted for possession of cocaine with intent to sell or deliver, possession of marijuana, possession of drug paraphernalia and for having attained the status of habitual felon. The cases were tried at the 15 September 2008 criminal session of Forsyth County Superior Court. Trial began 17 September 2008, but defendant did not return for the second day of trial. As a result, after instructing the jury, the trial court ordered his arrest. At the close of the State s evidence, the trial court dismissed the possession of marijuana charge. In defendant s absence, the jury returned guilty verdicts on the possession of cocaine with intent to sell or deliver and possession of drug paraphernalia charges and, at a separate hearing, found defendant had attained the status of habitual felon. Defendant was arrested in February 2010 and brought before the trial court for sentencing on 10 March 2010. The trial court consolidated the convictions defendant to 120 to 153 months in prison. and sentenced Defendant appeals. _________________________ On appeal, defendant argues the trial court committed reversible error in denying his motion for a mistrial after the State referred to his invocation of his constitutional right to remain silent following his arrest. We disagree. -3Analysis The standard of review from denial of a motion for mistrial is well-established: The decision to grant or deny a mistrial rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing by the defendant that the court abused its discretion. See State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992); State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986). Such a showing is made only where the trial court s ruling is so arbitrary that it could not have been the result of a reasoned decision. Barts, 316 N.C. at 682, 343 S.E.2d at 839. A trial court should grant a defendant s motion for mistrial only when there are improprieties in the trial so fundamental that they substantially and irreparably prejudice the defendant s case, making it impossible for the defendant to receive a fair and impartial verdict. See State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991); see also N.C. Gen. Stat. § 15A-1061 (1999) (requiring a showing of substantial and irreparable prejudice to the defendant s case in order to grant a mistrial). State v. Diehl, 147 N.C. App. 646, 650, 557 S.E.2d 152, 155 (2001). Further, [a] violation of the defendant s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless. N.C. Gen. Stat. § 15A-1443(b) (2009). A criminal defendant is entitled to remain silent under both the United States and North Carolina constitutions. State v. Ward, 354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001), cert. denied, 359 N.C. 197, 605 S.E.2d 472 (2004). -4[W]hen a defendant exercises his right to silence, it shall not create any presumption against him, N.C.G.S. § 8-54 (1999), and any comment by counsel on a defendant s failure to testify is improper and is violative of his Fifth Amendment right . . . . Nevertheless, a comment implicating a defendant s right to remain silent, although erroneous, is not invariably prejudicial. Indeed, such error will not earn the defendant a new trial if, after examining the entire record, this Court determines that the error was harmless beyond a reasonable doubt. Id. at 250-51, 555 S.E.2d at 264-65. In assessing possible error or prejudice, we note that, [g]enerally, when a trial court properly instructs jurors to disregard incompetent or objectionable evidence, any error in the admission of the evidence is cured. Diehl, 147 N.C. App. at 650, 557 S.E.2d at 155. Here, Detective Melly supervised the execution of the search warrant and testified at trial. The State asked her if she had spoken to defendant following his arrest. Defendant objected, but the court overruled the objection and allowed Det. Melly to answer. The detective stated that she had attempted to [talk to defendant], I asked him, which is protocol really, if he wanted an opportunity to tell his side of the story, and he invoked his right . . . . At this point, the trial court interrupted Det. Melly and sent the jury from the room. was inappropriate for a The trial court acknowledged that it witness to comment decision to remain silent or request counsel. a mistrial. on a defendant s Defendant moved for The trial court denied the motion, stating that it had stopped the witness s answer before she could finish her sentence and, thus, defendant had not been prejudiced. The trial court then -5called the jury back into the courtroom and gave the following curative instruction: All right, Ladies and Gentlemen, we are ready to continue. You can disregard any testimony about what happened down at the jail, as it doesn t appear that has anything to do with this. So we will move on. Go ahead. We conclude there was no error, let alone prejudicial error, in Det. Melly s testimony because she did not actually comment on defendant s right to remain silent. The transcript reveals that Det. Melly did not utter the words right to remain silent. Rather, she only mentioned that defendant invoked his right . . . before being cut off by the trial court. In addition, the trial court instructed the jury to disregard that portion of Det. Melly s testimony, which cures any error. See Diehl, 147 N.C. App. at 650, 557 S.E.2d at 155. Even were we to construe Det. Melly s testimony as a comment implicating a defendant s prejudice to defendant. right to remain silent, we see no After examining the entire record, we believe that any error in the denial of defendant s motion for mistrial was harmless beyond a reasonable doubt. defendant s guilt was overwhelming. The evidence of Defendant was found guilty of possession of cocaine with intent to sell or deliver and possession of drug paraphernalia. The evidence tended to show that cocaine and paraphernalia associated with the sale of cocaine were found in the glove defendant. compartment of a car identified as belonging to At the time of his arrest, defendant had the keys to his car, as well as $3,000.00 in cash, on his person, of which -6$100.00 was identified as money used in a controlled drug buy. Defendant s live-in girlfriend testified that defendant had sold drugs in the past. In light of this compelling evidence and in consideration of the entire record, we conclude that any error in the admission of the testimony of Det. Melly was harmless beyond a reasonable doubt. (citations omitted). Ward, 354 N.C. at 251, 555 S.E.2d at 265 In turn, because there was no error, much less prejudicial error in Det. Melly s testimony, the trial court did not abuse its discretion in denying defendant s motion for mistrial. No error. Judges MCGEE and BEASLEY concur. Report per rule 30(e).
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