An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1356
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 208506
ANTHONY CRAIG WALKER,
Defendant.
Appeal by defendant from judgment entered 3 May 2013 by
Judge Michael J. O’Foghludha in Wake County Superior Court.
Heard in the Court of Appeals 19 May 2014.
Roy Cooper, Attorney General, by J. Aldean Webster III,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Jon H. Hunt,
Assistant Appellant Defendant, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Anthony Craig Walker appeals from a judgment
entered upon a jury verdict finding him guilty of trafficking
opium by possession, trafficking opium by transportation, and
maintaining a vehicle for the purpose of keeping or selling
controlled substances. We find no error in defendant’s trial.
On 15 April 2012, defendant was stopped for a traffic
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violation. After learning that neither defendant nor the
passenger in the vehicle possessed a valid driver’s license, the
police officer advised defendant that someone would need to come
pick them up. When the officer then inquired about the odor of
marijuana emitting from the vehicle, defendant admitted he and
the passenger had smoked marijuana in the vehicle earlier that
evening. As a result, the officer ordered both men to step out
of the vehicle and conducted a search of the vehicle. Search of
the vehicle revealed two prescription pill bottles for oxycodone
and oxycodone/acetaminophen, 39 tablets of
oxycodone/acetaminophen, and two empty “prescription bags” for
180 tablets of oxycodone and 60 tablets of
oxycodone/acetaminophen made out to Kvonne Howard. Police also
searched defendant’s person and found three tablets of
oxycodone/acetaminophen and 382 dollars in his pocket.
On 3 May 2013, a jury convicted defendant of trafficking
opium by possession, trafficking opium by transportation, and
maintaining a vehicle for the purpose of keeping or selling
controlled substances. Defendant was sentenced to a
consolidated term of 70 to 84 months imprisonment. Defendant
appeals.
_________________________
In his sole argument on appeal, defendant contends the
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admission of the following testimony referring to defendant’s
exercise of his constitutional rights to remain silent and to
request counsel was plain error entitling him to a new trial:
Q. Okay. And apart from the statements he
made to you before his arrest, did he make
any other statements to you after his
arrest?
A. No, he did not.
. . . .
Q. [THE STATE]: To your knowledge, was Mr.
Walker given his Miranda rights?
A. Yes, he was.
Q. And to your knowledge, did he make any
other statement?
A. He did not make any other statement.
Q. Did he request a lawyer at that time?
A. Yes.
Q. So he was given an opportunity at that
point?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Ask to strike.
THE COURT: Motion to strike allowed.
Members of the jury, you will disregard that
previous question.
“[A] defendant’s exercise of his constitutionally protected
rights to remain silent and to request counsel during
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interrogation may not be used against him at trial.” State v.
Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994).
Admission of testimony regarding a defendant’s invocation of his
or her constitutional rights therefore constitutes error, and
such a constitutional error warrants a new trial unless it can
be shown that the error was harmless beyond a reasonable doubt.
State v. Christian, 180 N.C. App. 621, 624, 638 S.E.2d 470, 472
(2006), cert. denied, 362 N.C. 178, 658 S.E.2d 658 (2008).
However, “harmless error review applies only when the defendant
preserves the issue for appeal by timely objecting at trial.”
State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331
(2012).
Defendant concedes he did not object to the admission of
the testimony on constitutional grounds at trial and thus urges
this Court to consider this issue for plain error. “[P]lain
error standard of review applies on appeal to unpreserved
instructional or evidentiary error,” id. at 518, 723 S.E.2d at
334, and unpreserved constitutional error “will not be
considered for the first time on appeal, not even for plain
error.” State v. Gobal, 186 N.C. App. 308, 320, 651 S.E.2d 279,
287 (2007) (citation omitted), aff’d per curiam, 362 N.C. 342,
661 S.E.2d 732 (2008). Nonetheless, in State v. Moore, 366 N.C.
100, 104–06, 726 S.E.2d 168, 172–73 (2012), our Supreme Court
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considered this constitutional issue——seemingly treating it as
“unpreserved evidentiary error”——for plain error.
“For unpreserved evidentiary error to be plain error, the
defendant has the burden to show that after examination of the
entire record, the error had a probable impact on the jury’s
finding that the defendant was guilty.” Id. at 106, 726 S.E.2d
at 173 (internal quotation marks omitted). In ascertaining
whether the admission of testimony regarding a defendant’s
exercise of his or her constitutional rights to remain silent
and to request counsel constitutes plain error, we consider the
following factors: (1) whether there was substantial evidence
of the defendant’s guilt; (2) whether the testimony was directly
elicited by the State; and (3) whether the State emphasized or
capitalized on the testimony through mention in its closing
argument or cross-examination of the defendant. See id. at 106–
09, 726 S.E.2d at 173–75. Furthermore, questioning by the State
that references a defendant’s invocation of his or her
constitutional rights but merely serves to explain the
chronology of events surrounding the defendant’s arrest does not
warrant a new trial. See Christian, 180 N.C. App. at 624,
638 S.E.2d at 472.
Assuming, arguendo, the trial court erred in admitting the
testimony referring to defendant’s exercise of his
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constitutional rights, defendant has failed to show that the
error had a probable impact on the jury’s verdict. The State
presented overwhelming evidence of defendant’s guilt. In
addition, the record reveals that the reference to defendant’s
invocation of his constitutional rights was de minimis. The
State elicited the contested testimony but did so to establish
the chronology of the events surrounding defendant’s arrest and
made no attempt to emphasize or capitalize on the testimony. We
therefore conclude the admission of the testimony referring to
defendant’s exercise of his constitutional rights to remain
silent and to request counsel did not rise to the level of plain
error.
No Error.
Judges STEELMAN and DILLON concur.
Report per Rule 30(e).