State v. Bice

• Decision Date: 02 October 2018
• Docket Number: No. COA17-1188,COA17-1188
• Citation: 261 N.C.App. 664,821 S.E.2d 259
• Parties: STATE of North Carolina v. Joshua A. BICE, Defendant.
• Court: North Carolina Court of Appeals

261 N.C.App. 664

821 S.E.2d 259

STATE of North Carolina

v.Joshua A. BICE, Defendant.

No. COA17-1188

Court of Appeals of North Carolina.

Filed: October 2, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Cathy Pope, for the State.

Ward, Smith & Norris, P.A., New Bern, by Kirby H. Smith III, for defendant.

BERGER, Judge.

On November 17, 2016, a Wayne County jury convicted Joshua A. Bice ("Defendant") of possession of marijuana and trafficking opium by possession. Defendant alleges (1) error in the trial court’s admission of hearsay; (2) a fatal variance between Defendant’s indictment for trafficking opium by possession and the State’s evidence; (3) error in the trial court’s failure to instruct the jury on the statutory ultimate user exemption; and (4) ineffective assistance of counsel. We find no error.

Factual and Procedural Background

On the evening of September 18, 2015, Goldsboro Police Officer Donnie Head ("Officer Head") and North Carolina Alcohol Law Enforcement Agent Brian White ("Agent White") were parked in an unmarked police car at a Kangaroo gas station in Goldsboro, North Carolina, where they observed a Ford pick-up truck parked at the gas pumps. Rather than pumping gas, the driver of the pick-up truck, later identified to be Jason Hyland ("Hyland"), remained in his vehicle until Defendant’s silver Honda pulled into the parking lot. Hyland immediately exited his vehicle and walked to Defendant’s parked car.

Officer Head testified at trial that when Hyland reached Defendant’s car, they "transfer[red] something between their hands." Hyland immediately returned to his vehicle. Based upon their training and experience, Officer Head and Agent White believed they had witnessed a drug transaction and decided to investigate further. Officer Head approached Defendant while Agent White approached Hyland.

When Officer Head approached Defendant, he observed "[Defendant] sitting in the driver’s seat. There [were] no other occupants in the vehicle. [Defendant] was holding a pill bottle in his hand." After Officer Head identified himself and informed Defendant why he was there, Officer Head witnessed Defendant "quickly hid[e] the pill bottle down between his leg[s]." At Officer Head’s direction, Defendant identified himself and handed Officer Head the pill bottle, which contained fifty-four oxycodone

pills prescribed to Grover Bice.

After Officer Head asked Defendant to step out of his car, Defendant told him that the pills belonged to Defendant’s father, who was receiving cancer

treatment. Officer Head then searched Defendant and found $190.00 in cash in Defendant’s wallet and a clear bag of marijuana in the pocket of his pants. Defendant was placed under arrest and read his Miranda rights, which Defendant expressly waived by signing and initialing a written waiver.

When Defendant was interviewed, he admitted he went to the gas station to buy marijuana. Defendant also claimed the oxycodone pills belonged to his father, who often rode in Defendant’s car. Defendant signed and initialed each line of a written confession, which stated:

I made a mistake. I was trying to help my parents out because my dad has cancer

. I was selling the pills to make money to pay bills. I don’t get a profit off it. I just started selling them today. I have never sold them before. I don’t sell any other drugs. It was stupid of me. He just got them filled today. There was 100 pills. My dad kept 5. I sold Jason Hyland 41 earlier today for $250.00 cash. Tonight he was going to buy 12 pills for $100 cash approximately.

I looked on Google to see how much they sold on the street for. I saw they sold for $5-$15 each.

Defendant was indicted for trafficking opium by possession, possession with intent to sell or deliver opium, and possession of marijuana. Prior to trial, the State dismissed the charge of possession with intent to sell or deliver opium.

At trial, Defendant testified that he had never seen the confession bearing his signature and initials. However, when asked to review the confession, Defendant admitted that he signed and initialed each line of the statement. Defendant also testified that he recognized the specific content of his Miranda rights waiver and remembered reviewing, signing, and initialing each line of this waiver during the same interrogation. Defendant also admitted that he understood "quite well" that he was "in a very serious situation" when he was being interrogated, and also acknowledged that he had conducted internet research of his father’s medication.

Officer Head testified that Defendant’s confession reflected an exact transcription of Defendant’s responses to Officer Head’s interview questions. Officer Head also testified that he read the statement to Defendant, and handed the statement to Defendant. Defendant then "read over the statement, he initialed each line, that this—these were his words and this was a correct statement, and then at the very end of it I had him draw a line from the bottom of his statement to the bottom of the page so I couldn’t write or change anything in this statement where he signed and put the date." Officer Head also stated that he gave Defendant the opportunity to make any changes to the written confession, but Defendant did not "indicate he wanted to add anything, or change anything."

Neither Agent White nor Hyland testified at trial. However, Officer Head testified that Agent White found several $20.00 bills in Hyland’s possession, but no pills or other contraband. Because Agent White was not present at trial, Officer Head was allowed to read into evidence a hand-written statement that Hyland had given to Agent White. Defendant did not object to the admission of Hyland’s statement, which said: "I, Jason Hyland, met with [Defendant] at Bojangles’ in Princeton to buy oxycodone [and] an hour later at the Kangaroo on 70 where I was about to purchase more and the cops saw us about to do a hand-to-hand and approached us." The statement was signed by Hyland; dated September 18, 2015, at 11:12 p.m.; and was corroborated by Defendant’s testimony that he had met with Hyland at Bojangles’ earlier on September 18, 2015 to purchase more than three grams of marijuana.

After the statement was read into evidence, the State offered a copy of Hyland’s hand-written statement into evidence. The trial court specifically asked if there were any objections to the admission of Hyland’s statement, and Defendant replied that he had no objection to its admission.

Defendant was convicted of trafficking opium by possession and possession of marijuana. He was sentenced to seventy to ninety-three months in prison, fined $50,000.00, and placed on probation upon his release from prison. Defendant timely appeals, alleging the trial court erred by admitting Hyland’s hearsay statement, denying his motion to dismiss on fatal variance grounds, and by not instructing the jury on the statutory ultimate user exemption. Defendant also asserts he received ineffective assistance of counsel.

Analysis

I. Hearsay

Defendant first challenges the trial court’s admission of Hyland’s written statement into evidence, arguing that it was inadmissible hearsay. Defendant concedes he failed to object to the admission of the statement, and thus, did not preserve this issue for review. Instead, Defendant requests this Court review the admission of Hyland’s statement for plain error. We find that Defendant is not entitled to appellate review on this issue.

"In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4) ; see also State v. Goss , 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied , 555 U.S. 835, 129 S.Ct. 59, 172 L.Ed.2d 58 (2008). The Supreme Court of North Carolina "has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge’s instructions to the jury, or (2) rulings on the admissibility of evidence." State v. Gregory , 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996), cert. denied , 525 U.S. 952, 119 S.Ct. 382, 142 L.Ed.2d 315 (1998).

Plain error arises when the error is "so basic, so prejudicial, so lacking in its elements that justice cannot have been done." State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation marks omitted), cert. denied , 459 U.S. 1018, 74 L.Ed. 2d 513 (1982) ). "Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan , 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

Here, Defendant has failed to demonstrate that any "judicial action" by the trial court amounted to error. N.C.R. App. P. 10(a)(4). Defendant not only failed to object to the entry of Hyland’s statement, but he also expressly consented to the admission of the same. Defendant now argues that the admission of Hyland’s statement was an error by the trial court.

When the State introduced Hyland’s written statement at trial, the following exchange took place:

THE COURT: All right. Any objection to State’s Exhibit No. 7?

[Defense Counsel:] No, sir, Judge.

THE COURT: All right. Then State’s Exhibit No. 7 is hereby admitted into evidence.

This action by defense counsel to consent to the admission of Hyland’s statement may have been the result of strategic decisions made by Defendant and trial counsel, or Hyland’s statement may have been admitted because of questionable performance by counsel. Whatever the reason, a trial court is not required to second guess every decision, action, or inaction by defense counsel. Imposing such a requirement on our trial courts is neither desirable nor workable.

While the trial court should "see that the...