State v. Graham

• Decision Date: 17 January 2023
• Docket Number: COA22-48
• Parties: STATE OF NORTH CAROLINA v. JORDAN MONTEZ GRAHAM
• Court: North Carolina Court of Appeals

2023-NCCOA-6

STATE OF NORTH CAROLINA v. JORDAN MONTEZ GRAHAM

No. COA22-48

Court of Appeals of North Carolina

January 17, 2023

Heard in the Court of Appeals 21 September 2022.

Appeal by defendant from judgment entered 21 May 2021 by Judge W Robert Bell in Mecklenburg County, Nos. 18 CRS 5401, 18 CRS 5402, 18 CRS 5403 Superior Court.

Attorney General Joshua H. Stein, by Special Attorney General Tamara M. Van Pala Skrobacki, for the State.

Daniel J. Dolan and Appellate Defender Glenn G. Gerding for DefendantAppellant.

CARPENTER, Judge.

¶ 1 Defendant appeals from judgment after a jury convicted him of felonious breaking or entering, larceny after breaking or entering, and attaining the status of habitual breaking and entering offender. On appeal, Defendant argues: (1) the trial court prejudicially erred when it instructed the jury "[t]he State will present evidence relating to previous convictions" during the habitual status offender phase of trial; (2) the trial court committed plain error by admitting expert testimonies without establishing the necessary foundation for reliability under Rule 702; and (3) the case should be remanded for correction of a clerical error on the written judgment relating to the felony class of the habitual breaking and entering status offense. After careful review, we find no prejudicial error.

I. Factual &Procedural Background

¶ 2 The State's evidence at trial tends to show the following: On 16 June 2016 at approximately 5:30 p.m., Marie Broz ("Broz") left her Charlotte home to take three of her children to track practice, leaving her oldest daughter, A.B., alone in the house. Broz received two phone calls from A.B. while Broz was gone. In her first call, A.B. told Broz that she thought she heard footsteps in the home. Broz confirmed to A.B. that Broz and the other children were not inside the house. Before calling Broz again, A.B. stepped out of her bedroom and noticed a window was broken, and the back door was open. In her second call, A.B. told Broz that she believed the home had been broken into. Broz instructed A.B. to call the police. Blood was found on the shattered glass, blinds, and floor. Additionally, fingerprints were left on the window frame. A PlayStation and other gaming equipment belonging to Broz's son were found to be missing from the home.

¶ 3 Shortly after 10:00 p.m. that evening, James Pease ("Pease"), a crime scene investigator for the Charlotte-Mecklenburg Police Department ("CMPD"), responded to Broz's home to investigate the residential breaking and entering and larceny. Pease testified that he gathered photographs of the residence and collected latent evidence, including fingerprints; suspected biological evidence, including blood; and physical evidence, including a shovel and hair from a bucket, which was used to prop open the rear screen door. Pease dusted for and found fingerprints on the frame of the broken window-the suspected point of entry.

¶ 4 Aaron Partridge ("Partridge"), a detective for CMPD, was assigned to investigate the case. Defendant became a suspect in the investigation after Partridge received "a DNA comparison result back [from the crime lab] that identified [Defendant] ...." Partridge then obtained a search warrant for a DNA sample from Defendant and took the sample by rubbing a buccal swab in Defendant's mouth. Partridge submitted a lab request to have the swabs of suspected blood be tested for a DNA profile. Partridge submitted another lab request to compare the swab from Defendant with the swabs of suspected blood that were collected from the crime scene. Partridge also requested that the fingerprints collected from the crime scene be compared with Defendant's.

¶ 5 Todd Roberts ("Roberts"), a fingerprint examiner at the CMPD crime lab, was admitted as a fingerprint expert without objection by Defendant. Roberts testified he analyzed the fingerprints collected from the window frame and compared them with an ink print card containing Defendant's prints. Roberts opined a print on Defendant's ink print card was consistent with the latent fingerprint obtained from the window frame.

¶ 6 Shannon Guy ("Guy"), a DNA criminalist at the CMPD crime lab, analyzed the blood left at the crime scene. Guy was tendered as an expert in DNA analysis and identification without objection by Defendant. Guy testified she generated a DNA profile from the suspected blood swab collected from the blinds and compared it with the full "single-source DNA profile" obtained in Defendant's buccal swab. Guy formed the opinion the sample collected from the blinds matched the DNA collected from Defendant and testified "there were no inconsistencies across all 24 areas" of the DNA samples she analyzed.

¶ 7 On 5 March 2018, a Mecklenburg County grand jury indicted Defendant on the charges of felonious breaking or entering, in violation of N.C. Gen. Stat. § 14-54(a); larceny after breaking or entering, in violation of N.C. Gen. Stat. § 14-72(b)(2); and attaining habitual breaking and entering offender status, in violation of N.C. Gen. Stat. § 14-7.26.

¶ 8 On 13 April 2021, a jury trial began before the Honorable Hugh B. Lewis, judge presiding. The trial was bifurcated, and the jury addressed the issue of Defendant's guilt in relation to the two substantive offenses in the first phase of the trial. In the second phase of the trial, the jury addressed the issue of enhancement as a habitual offender. Defendant was not present for the last day of his trial, 15 April 2021. On 15 April 2021, the jury returned its verdicts, finding Defendant guilty, in absentia, of felonious breaking or entering and larceny after breaking or entering.

¶ 9 Following the jury rendering its verdicts in the first phase, the trial court began the second phase of the proceeding for the jury to consider the habitual breaking and entering status. The trial judge announced to the jury: "The State will present evidence relating to previous convictions of breaking and/or entering at this time." The State tendered into evidence a certified copy of Defendant's judgment from a prior conviction for breaking and/or entering. Counsel for Defendant moved to dismiss at the close of the State's evidence and after the close of all evidence, and the motions were denied. Defendant did not object to the jury instruction regarding habitual breaking and entering. At the conclusion of the second phase of trial, the jury returned a verdict finding Defendant guilty, in absentia, of attaining habitual breaking and entering offender status.

¶ 10 Due to Defendant's absence at the last day of trial, Defendant's sentencing hearing took place on 21 May 2022 before the Honorable W. Robert Bell. Defendant was sentenced to a minimum of thirty months and a maximum of forty-eight months in the custody of the North Carolina Department of Corrections. Defendant gave oral notice of appeal in open court after the trial court entered judgment.

II. Jurisdiction

¶ 11 As an initial matter, we consider Defendant's petition for writ of certiorari. On 13 May 2022, Defendant filed with this Court a petition for writ of certiorari contemporaneously with his brief, in the event his oral notice of appeal was deemed inadequate.

¶ 12 Rule 4 of the North Carolina Rules of Appellate Procedure permits a "party entitled by law to appeal from a judgment" to "take appeal by . . . giving oral notice of appeal at trial ...." N.C. R. App. P. 4(a)(1).

¶ 13 Here, counsel for Defendant gave oral notice of appeal while the trial court was in open session, and immediately after the trial court entered its judgment against Defendant. Defendant did not file written notice of appeal. The State does not challenge the sufficiency of Defendant's oral notice of appeal.

¶ 14 Because Defendant gave oral notice of appeal in open court immediately upon entry of the final judgment, Defendant properly gave "notice of appeal at trial," as required by Rule 4. See State v. Lopez, 264 N.C.App. 496, 503, 826 S.E.2d 498, 503 (2019) (explaining oral notice of appeal given before the entry of final judgment is premature, and consequently, inadequate notice); see also N.C. R. App. P. 4(a)(1). Thus, we deem Defendant's petition for writ of certiorari unnecessary and dismiss the petition. See State v. Howard, 247 N.C.App. 193, 205, 783 S.E.2d 786, 794-95 (2016) (dismissing the State's petition for writ of certiorari where our Court deemed the petition was not needed to confer the Court's jurisdiction).

¶ 15 Therefore, this Court has jurisdiction to address Defendant's appeal from a final judgment pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021) and N.C. Gen. Stat. § 15A-1444(a) (2021).

III. Issues

¶ 16 The issues before this Court are: (1) whether the trial court violated N.C. Gen.Stat. §§ 15A-1222 and 15A-1232 when it communicated to the jury that the State would be "present[ing] evidence relating to previous convictions of breaking and/or entering"; (2) whether the trial court plainly erred when it admitted the expert opinions of Roberts and Guy on the grounds their testimonies lacked the necessary foundation for admissibility under Rule 702; and (3) whether the trial court's designation of the habitual breaking and entering status offense as a Class E felony on the written judgment constitutes a clerical error.

IV. Jury Instructions in Second Phase of Trial

¶ 17 In his first argument, Defendant contends the trial court prejudicially erred by communicating to the jury that the "State will present evidence relating to [Defendant's] previous convictions of breaking and/or entering" because proof of such prior conviction "was an essential element of the charge that the jury was required to determine." The State argues the trial court did not err in...