State v. Loftis

• Court: North Carolina Court of Appeals
• Citation: State v. Loftis, 185 N.C. App. 190 (N.C. App. 2007)
• Docket Number: COA06-728
• Decision Date: 07 August 2007
• Parties: STATE OF NORTH CAROLINA v. CHRISTOPHER BOYCE LOFTIS

185 N.C. App. 190

STATE OF NORTH CAROLINA v. CHRISTOPHER BOYCE LOFTIS

No. COA06-728

North Carolina Court of Appeals

(Filed 7 August 2007)

1. Constitutional Law— right to remain silent — comment defendant did not want to make statement after Miranda rights

The trial court did not commit plain error in a drug trafficking case by allowing an officer to testify that after she read defendant his Miranda rights, defendant did not want to make any statements, because even assuming arguendo that the admission of this testimony was error in the present case, it did not amount to plain error when: (1) the State made only one brief reference to defendant’s post-arrest silence; (2) the State did not reinforce this improper evidence in its closing argument; (3) the reference to defendant’s post-arrest silence was not a direct attack on defendant’s version of events, but was merely a passing reference that was likely disregarded by the jury; (4) the State did not offer evidence that defendant invoked his right to remain silent in the face of an accusation, and thus invocation of the right could not have been viewed as a confession of guilt; and (5) absent admission of the officer’s testimony, the jury would not have reached a different verdict.

2. Drugs— trafficking — motions to dismiss — sufficiency of evidence — constructive possession

The trial court did not err by denying defendant’s motions to dismiss drug trafficking charges because the State sufficiently provided incriminating circumstances to establish that defendant had constructive possession of methamphetamine and precursor chemicals including that (1) defendant was found inside a locked shed with the methamphetamine and precursor chemicals, a jar of unknown liquid containing methamphetamine was on a heater that was still warm to the touch, and a letter was found in the shed that was addressed to defendant containing confidential tax information; and (2) defendant was the only person seen entering and leaving the shed that evening, and there was no evidence that anyone else’s belongings were inside the shed.

3. Evidence— involvement of another person — defendant’s address at time of arrest

The trial court did not err in a drug trafficking case by excluding evidence of law enforcement’s suspicions of the involvement of another person and evidence of defendant’s address at the time of his arrest, because: (1) although defendant contends excluding evidence of the other person’s prior use of methamphetamine and her prior violation of probation violated his constitutional right to present a defense, this argument is waived based on defendant’s failure to make it at trial; (2) even if this assignment of error had been preserved, the evidence of the other person’s involvement did not disprove any of the evidence against defendant; (3) the evidence of the other person’s probation violation had not yet been adjudicated at the time of defendant’s trial; and (4) evidence that the address on the envelope introduced by the State was different from defendant’s address at the time of his arrest only proved defendant had moved between January 2004 and April 2004.

4. Constitutional Law— effective assistance of counsel — dismissal of claim without prejudice

Defendant’s claim that he received ineffective assistance of counsel is dismissed without prejudice to defendant’s right to raise this claim in a post-conviction motion for appropriate relief because there was insufficient information in the record regarding trial counsel’s strategy.

Appeal by Defendant from judgments dated 27 September 2005 by Judge Ronald K. Payne in Superior Court, McDowell County. Heard in the Court of Appeals 10 April 2007.

Attorney General Roy Cooper, by Special Counsel to Attorney General Jay J. Chaudhuri, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for Defendant-Appellant.

McGEE, Judge.

Christopher Boyce Loftis (Defendant) was indicted on 17 May 2005 on charges of trafficking in more than 400 grams of methamphetamine by possession; trafficking in more than 400 grams of methamphetamine by manufacture; possession of a precursor chemi*192 cal, pseudoephedrine, with intent to manufacture methamphetamine; possession of a precursor chemical, iodine, with intent to manufacture methamphetamine; and possession of a precursor chemical, red phosphorus, with intent to manufacture methamphetamine.

At trial, the State presented evidence that shortly before midnight on 3 April 2004, Max Boyd (Mr. Boyd) noticed that a light was on in a shed on his property. The shed was located near a house where Mr. Boyd’s daughter, Elizabeth Boyd Brinkley (Ms. Brinkley) lived. The house was owned by Mr. Boyd. When Mr. Boyd saw movement in the shed, he tried to open the door, but the door was locked from the inside with a chain. Mr. Boyd yelled for the person inside the shed to open the door. A person opened the door and stepped out and Mr. Boyd recognized that person as Defendant. Mr. Boyd told Defendant to leave, and Defendant left. Mr. Boyd then looked inside the shed and saw objects that “looked like something that wasn’t supposed to be in there” and immediately used his cell phone to contact law enforcement. Mr. Boyd further testified that on previous occasions he had seen Defendant on his property when Defendant visited one of Mr. Boyd’s tenants.

Lieutenant Jackie Turner, Jr. (Lieutenant Turner) of the McDowell County Sheriff’s Office testified that he responded to a call at Mr. Boyd’s property late on the evening of 3 April 2004. Lieutenant Turner stated that he met with Mr. Boyd, who showed him the shed on his property. Lieutenant Turner looked inside the shed and saw what he believed to be a methamphetamine lab. Lieutenant Turner then developed a log to ensure that an officer remained by the site until agents arrived from the North Carolina State Bureau of Investigation (SBI).

SBI agents searched the shed' at approximately noon on 5 April 2004. The agents found many items commonly used in the manufacture of methamphetamine, including iodine, pseudoephedrine, and red phosphorus. They also found two bottles containing a total of 2,090 grams of liquid later determined to contain methamphetamine. The agents also discovered a jar containing an unknown liquid on a heater that was still warm to the touch, and other materials commonly used in the manufacturing of methamphetamine.

Shannon Smith, a narcotics investigator for the McDowell County Sheriff’s Office (Officer Smith), testified that she did not conduct a fingerprint examination of the shed because it was difficult to obtain fingerprints from some of the materials. Officer Smith admitted that she could have requested the SBI to perform a fingerprint examina*193 tion of the shed and its contents, but did not do so. Officer Smith had previously investigated Mr. Boyd’s property, and she believed Mr. Boyd’s daughter, Ms. Brinkley, to be a suspect, though Ms. Brinkley was not charged. Officer Smith further testified as follows:

Q. After the crime scene was processed on the 5th, what was your next involvement with this case?

A. Next involvement was, I guess, probably severál months later. I was contacted by one of the deputies there, they had [Defendant] in custody. And I came back to the Sheriff’s Office in an attempt to do an interview.

Q. And did you read [Defendant] his rights?

A. Yes, I did.

Q. And did [Defendant] indicate to you that he understood each of those rights?

A. Yes, he did.

Q. And did [Defendant] make any further statements at that point?

A. No, he did not want to make any statements.

Q. Did you have any other involvement with the case at that point?

A. No, sir.

Officer Smith identified a letter found inside the shed. The envelope was addressed to Defendant at 6276 Buck Creek Road in Marion, North Carolina; not to Mr. Boyd’s address, nor to the address where Defendant was arrested. The envelope was postmarked 20 January 2004 and contained a 2003 tax document of Defendant’s from the Employment Security Commission.

At the close of the State’s evidence, Defendant moved to dismiss all charges, and the trial court denied the motion. Defendant did not present evidence and again moved to dismiss the charges. The trial court again denied Defendant’s motion. The jury found Defendant guilty of all charges. The trial court sentenced Defendant to a term of 225 months to 279 months in prison on the two trafficking charges. The trial court suspended the sentences on the remaining charges and sentenced Defendant to thirty-six months of supervised probation to begin at the expiration of Defendant’s prison sentence. Defendant appeals.

I.

[1] Defendant argues the trial court committed plain error by allowing Officer Smith to testify that after she read Defendant his Miranda rights, Defendant “did not want to make any statements.” Defendant argues the evidence that Defendant invoked his constitutional right to remain silent constituted plain error because it had a probable impact on the jury’s finding of guilt. We disagree.

In a criminal proceeding, appellate review of questions not objected to at trial is limited to plain error. N.C.R. App. P. 10(c)(4). In evaluating whether or not “an error by the trial court amounts to ‘plain error,’ the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33 , 39, 340 S.E.2d 80 , 83 (1986) (citing State v. Odom, 307 N.C. 655 , 661, 300 S.E.2d 375 , 378-79 (1983)).

“We have consistently held that the State may not introduce evidence that a defendant exercised his fifth amendment right to remain silent.” State v. Ladd, 308 N.C. 272 , 283, 302 S.E.2d 164 , 171 (1983). However, even assuming arguendo that the admission of this testimony was error in the present cáse, we hold that it did not amount to plain error.

In support of his argument that the admission of this evidence amounted to plain error, Defendant cites State v....