State v. Degraffenried, ___ N.C. App. ___, 821 S.E.2d 887 (Nov. 6, 2018)

In this drug trafficking case, the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s closing argument. During those arguments, the prosecutor, without objection, made references to the defendant’s right to a jury trial and noted that the defendant had exercised that right despite “[a]ll of the evidence” being against him. The 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 the defendant’s constitutional right to a jury trial. Here, the prosecutor’s comments were improper. The court stated: “Counsel is admonished for minimalizing and referring to Defendant’s exercise of his right to a trial by jury in a condescending manner.” However, because the evidence of guilt was overwhelming the defendant failed to show that the comments were so prejudicial as to render the trial fundamentally unfair.