State v. Loftis

• Decision Date: 07 August 2007
• Docket Number: No. 51121.,No. 04 CRS 51118.,No. 51120.,04 CRS 51118.,51120.,51121.
• Citation: 649 S.E.2d 1
• Parties: STATE of North Carolina v. Christopher Boyce LOFTIS.
• Court: North Carolina Court of Appeals

649 S.E.2d 1

STATE of North Carolina v. Christopher Boyce LOFTIS.

No. 04 CRS 51118.

No. 51120.

No. 51121.

Court of Appeals of North Carolina.

August 7, 2007.

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., Chapel Hill, 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 chemical, 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 examination 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 several 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.

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 case, 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. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989), and State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974). However, these cases are distinguishable.

In Hoyle, police advised the defendant of his Miranda rights, and the defendant answered some of their questions. Hoyle, 325 N.C. at 234, 382 S.E.2d at 753. However, when police asked the defendant what occurred when the victim followed the defendant back to the defendant's truck, the defendant invoked his constitutional right not to answer. Id. At trial, the defendant testified that after the victim followed him back to the defendant's truck, the victim attacked him, and after a struggle for a gun, the gun discharged, killing the victim. Id. The State attempted to impeach this theory by making three references to the defendant's post-arrest silence. Id. at 235-36, 382 S.E.2d at 753-54. The State first referenced the defendant's post-arrest silence during direct examination of a police detective; the State next referenced the defendant's post-arrest silence during cross-examination of the defendant; and the State also referenced the defendant's silence during its closing argument. Id. The defendant timely objected to the State's questions at trial. Id.

The Court recognized that because there was no eyewitness to the shooting other than the defendant, the defendant's defense "depended on the jury's acceptance of his version of the event." Id. at 237, 382 S.E.2d at 754. Therefore, the Court held that the State could not demonstrate that it was harmless error to allow the State to attack the defendant's version of events by improper evidence, which the State reinforced by jury argument. Id.

In the present case, unlike in Hoyle, the State made only one brief reference to Defendant's post-arrest silence. Furthermore, the State did not reinforce this improper evidence in its closing argument. Moreover, the reference to Defendant's post-arrest silence was not a direct attack on Defendant's version of events, as was the case in Hoyle; it was merely a passing reference that was likely disregarded by the jury.

Defendant also cites Castor in his argument that the admission of Officer Smith's testimony constituted plain error. In Castor, an SBI agent testified over the defendant's objection that a witness made a statement in the defendant's presence, accusing the defendant of the crime charged, and the defendant did not deny or object to the statement. Castor, 285 N.C. at 289, 204 S.E.2d at 851. A jury instruction also allowed the jury to "consider the defendant's silence together with all other facts and circumstances in this case in determining the defendant's guilt or innocence." Id.

In Castor, the Court held that the erroneous admission of this testimony was prejudicial, noting that if true, the statements "were sufficient to establish that [the] defendant was the person who committed the crime charged in the indictment." Id. at 292, 204 S.E.2d at 853. The Court further recognized that "[i]f considered an admission of the truthfulness of these statements, [the] defendant's silence would be the equivalent of a confession of guilt." Id. "Under [the] circumstances, it seem[ed] probable the challenged evidence contributed substantially to the conviction of [the] defendant." Id. at 292-93, 204 S.E.2d at 853.

Officer Smith's testimony in the case before us was...