State v. Grappo, 051920 NCCA, COA19-734

Docket Nº:COA19-734
Opinion Judge:INMAN, JUDGE
Party Name:STATE OF NORTH CAROLINA v. JOSHUA GRAPPO, Defendant.
Attorney:Attorney General Joshua H. Stein, by Senior Deputy Attorney General Amar Majmundar, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily Holmes Davis, for Defendant.
Judge Panel:Judges DIETZ and DILLON concur.
Case Date:May 19, 2020
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

JOSHUA GRAPPO, Defendant.

No. COA19-734

Court of Appeals of North Carolina

May 19, 2020

Heard in the Court of Appeals 15 April 2020.

Appeal by Defendant from judgments entered 28 January 2019 by Judge Phyllis M. Gorham in Onslow County Superior Court Nos. 16 CRS 54819-20, 55710; 18 CRS 2390

Attorney General Joshua H. Stein, by Senior Deputy Attorney General Amar Majmundar, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily Holmes Davis, for Defendant.

INMAN, JUDGE

"It is desirable in criminal maters to adhere to the established practice. Innovations usually result in prolonged litigation." State v. Benton, 226 N.C. 745, 747-48, 40 S.E.2d 617, 618 (1946) (citation omitted). The wisdom of our Supreme Court's words more than 70 years ago is manifest in this appeal, which stems from a trial court's decision to forego its statutory duty to charge the jury by instead having a courtroom clerk read aloud significant portions of the instructions to the jury. Although we agree with Defendant that the judge's act constituted error-one that we emphasize should not be repeated by members of the trial bench in the future- we hold that Defendant has failed to demonstrate prejudice warranting a new trial.

Defendant also requests we remand this case for resentencing pursuant to a motion for appropriate relief ("MAR") filed with this Court. Because Defendant's MAR raises an evidentiary question and relies on matters not found in the settled record on appeal, we dismiss his MAR without prejudice to him re-filing one with the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

The evidence introduced at trial discloses the following:

On 23 June 2016, Joseph Allen purchased opioids from Defendant at Allen's home in Snead's Ferry. After Defendant left the premises, Allen took a dose and collapsed on the bathroom floor. Allen's girlfriend, Shannon Connor, found him unconscious in the bathroom and phoned Defendant for help; Defendant answered, told Connor to call 9-1-1, and returned to the house with two women a short time later. Defendant and one of the women attempted to resuscitate Allen but were unsuccessful. Defendant left the scene before paramedics arrived. Allen was taken to the hospital, and the next day providers pronounced him brain dead from prolonged cardiac arrest caused by a drug overdose.

A few weeks later, on 22 July 2016, police detained Defendant and his girlfriend during a routine traffic stop. During the stop, Defendant's girlfriend informed police that she was hiding heroin inside her pants. A search of Defendant, his girlfriend, and the vehicle uncovered 106 individual bags of opioids. Defendant was arrested and indicted on charges arising from both the traffic stop and Allen's death, including, among others: (1) felony conspiracy to possess heroin; (2) maintaining a vehicle; (3) possession with intent to sell or deliver heroin; (4) possession with intent to sell or deliver fentanyl; (5) selling fentanyl; (6) delivering fentanyl; and (7) second-degree murder.

Defendant's charges were joined for trial beginning 14 January 2019. After all evidence had been presented, counsel had participated in a charge conference, and closing arguments were presented to the jury, the trial court called a five-minute recess. Following the recess, but before the jury returned to the courtroom, the trial judge engaged in the following discussion with counsel:

THE COURT: I'm going to have the clerk to help me with the reading. Any objection from the [S]tate?

[THE STATE]: Not from the [S]tate, Judge.

THE COURT: Any objection?

[DEFENDANT'S COUNSEL]: I'm sorry, Judge, I was talking.

THE COURT: I'm going to have the clerk to help me with reading the instructions to the jury.

[DEFENDANT'S COUNSEL]: No objection.

The trial court called the jury back into the courtroom and announced that, "I'm going to read you the instructions, and the clerk is going to help me to read some of these instructions. So listen to the instructions as she is reading them." The clerk then read a significant portion of the jury instructions, including instructions on: (1) the function of the jury; (2) the presumption of innocence; (3) the State's burden of proof and the definition of reasonable doubt; (4) the jury's duty in evaluating the credibility of witnesses; (5) the weight of the evidence; (6) the definitions of direct and circumstantial evidence; and (7) the effect of Defendant's decision not to testify. When the clerk misread some of these instructions, the judge interjected to offer corrections. The clerk concluded reading her portion of the instructions, after which the trial judge read the remainder of the instructions focusing on the specific charges and factual findings required by the jury to convict Defendant.1

The jury ultimately returned guilty verdicts on each charge with the exception of second-degree murder; the jury instead found Defendant guilty of involuntary manslaughter, a lesser-included offense. Defendant timely appealed.

II. ANALYSIS

A...

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