IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1001
Filed: 5 April 2016
Henderson County, No. 13CRS491–92
STATE OF NORTH CAROLINA
v.
TODD STIMSON, Defendant.
Appeal by defendant from Order entered 26 March 2015 by Judge Mark E.
Powell in Henderson County Superior Court. Heard in the Court of Appeals 10
February 2016.
Attorney General Roy Cooper, by Assistant Attorney General Perry J. Pelaez, for
the State.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant.
ELMORE, Judge.
Todd Stimson (defendant) was found guilty of trafficking in marijuana by
possessing more than ten pounds and trafficking in marijuana by manufacturing
more than ten pounds under N.C. Gen. Stat. § 90-95(h). On appeal, defendant argues
that the trial court erred in quashing a subpoena he issued to a North Carolina
Department of Revenue employee and that he received ineffective assistance of
counsel (IAC). We conclude the trial court did not abuse its discretion in quashing
the subpoena, and we therefore affirm. We dismiss without prejudice the IAC claim.
STATE V. STIMSON
Opinion of the Court
I. Background
The State’s evidence tended to show the following: On 8 August 2011, the
Fletcher Police Department received an anonymous call about illegal activity
occurring at defendant’s address. The next day, Fletcher police officers “conducted a
garbage pull . . . to see if there was anything in the garbage that would indicate there
was marijuana being grown or any illegal activity occurring based on the complaint.”
After not finding any incriminating evidence, officers did not continue to actively
investigate defendant.
Nearly two years later, officers performed four garbage pulls in June 2013 and
one in July 2013. They found “rolling papers,” “roaches,” and “trim waste.” After the
trim waste tested positive for marijuana, Erik Sumney, Chief of Police, and Detective
Daniel Barale obtained a search warrant for defendant’s property, which they
executed on 11 July 2013. Officers seized seventy-five marijuana plants from
defendant’s barn, one container of marijuana from defendant’s home, and two plastic
bags of marijuana from defendant’s freezer. Officers transported the evidence to the
North Carolina State Crime Lab. Drug chemistry analyst Julie Gillette tested and
weighed three of the ten items of evidence pursuant to the lab threshold sampling
selection requirements. The lab report indicates that the three items analyzed tested
positive for marijuana and weighed 5.31 kilograms or 11.7 pounds.
On 29 July 2013, defendant was indicted on one count of trafficking in
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Opinion of the Court
marijuana by possessing more than ten pounds and one count of trafficking in
marijuana by manufacturing more than ten pounds. The case came on for trial on 23
March 2015 in Henderson County Superior Court. That same day, defendant served
North Carolina Department of Revenue employee George Valsame with a subpoena
to testify at the trial and produce “[a]ll documents related to the Unauthorized
Substance Tax action against [defendant].”
Valsame, through counsel from the North Carolina Attorney General’s Office,
moved to quash the subpoena claiming it required disclosure of protected matter and
testimony that was prohibited by statute. The trial court allowed the motion and
quashed the subpoena. Defendant did not put on any evidence and was found guilty
of both charges. The Honorable Mark E. Powell sentenced defendant to twenty-five
to thirty-nine months imprisonment and recommended work release. Defendant
appeals.
II. Analysis
A. Quashed Subpoena
Defendant argues the trial court’s decision to quash the subpoena violated his
right under the federal and state constitutions to call witnesses in his defense.
Defendant, however, did not raise his constitutional argument in the trial court, and
it may not be considered for the first time on appeal. Fields v. McMahan, 218 N.C.
App. 417, 419, 722 S.E.2d 793, 794 (2012).
Defendant next argues that the “trial court abused its discretion by acting
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Opinion of the Court
under a misapprehension of the law that led it to conclude that it had no discretion
to exercise.” He contends that N.C. Gen. Stat. § 105-113.112 only prevents the
prosecutor, not a defendant, from calling a Department of Revenue employee to
testify.
“A motion to quash a subpoena is addressed to the sound discretion of the trial
court and is not subject to review absent a showing of an abuse of discretion.” State
v. Hurt, ___ N.C. App. ___, ___, 760 S.E.2d 341, 348 (July 15, 2014) (No. COA09-442-
2) (citing State v. Newell, 82 N.C. App. 707, 709, 348 S.E.2d 158, 160 (1986)), review
denied, 367 N.C. 807, 766 S.E.2d 679 (2014). “An abuse of discretion occurs only
where a trial court’s ruling was ‘manifestly unsupported by reason or [was] so
arbitrary that it could not have been the result of a reasoned decision.’ ” Id. at ___.
760 S.E.2d at 348 (quoting State v. White, 349 N.C. 535, 552, 508 S.E.2d 253, 264
(1998)). “In exercising that discretion, the trial judge should consider the relevancy
and materiality of the items called for, the right of the subpoenaed person to withhold
production on other grounds, such as privilege, and also the policy against ‘fishing
expeditions.’ ” Newell, 82 N.C. App. at 709, 348 S.E.2d at 160.
Under N.C. Gen. Stat. § 105-113.107 (2011), titled, “Excise tax on unauthorized
substances,” an excise tax is levied on controlled substances possessed by dealers.
The North Carolina Department of Revenue issues revenue stamps to affix to
unauthorized substances to indicate payment of the tax, and dealers report the taxes
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Opinion of the Court
paid via an unauthorized substance tax return. N.C. Gen. Stat. § 105-113.108 (2011).
Dealers are not required to give their name, address, social security number, or other
identifying information on the return. Id. Here, revenue stamps were affixed to some
of the marijuana plants seized from defendant’s property.
At issue here is N.C. Gen. Stat. § 105-113.112, titled, “Confidentiality of
information.” Both the State and defendant refer to the amended version, which took
effect on 23 August 2013,1 and relevant to defendant’s argument added the words,
“by a prosecutor.” However, because defendant was indicted on 29 July 2013, the
amendments would not apply in his trial. State v. Gamez, 228 N.C. App. 329, 332,
745 S.E.2d 876, 878 (2013) (“A criminal action arises when the defendant is indicted.”)
(citing State v. Williams, 151 N.C. 660, 660, 65 S.E. 908, 909 (1909)); see also State v.
McGraw, COA 15-6, 2015 WL 6163958, (N.C. Ct. App. Oct. 20, 2015) (“Therefore,
because Defendant’s indictment predated the effective date of the amendments to
Rule 702, we must apply the former version of Rule 702.”).
Accordingly, as of the date of defendant’s indictment, N.C. Gen. Stat. § 105-
113.112 (2011) stated,
Information obtained by the Department in the course of
administering the tax imposed by this Article, including
1 N.C. Gen. Stat. § 105-113.112 (2013) (“Information obtained by the Department from the taxpayer
in the course of administering the tax imposed by this Article, including information on whether the
Department has issued a revenue stamp to a person, may not be used as evidence, as defined in G.S.
15A-971, by a prosecutor in a criminal prosecution of the taxpayer for an offense related to the
manufacturing, possession, transportation, distribution, or sale of the unauthorized substance.”)
(emphasis added).
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Opinion of the Court
information on whether the Department has issued a
revenue stamp to a person, is confidential tax information
and is subject to the following restrictions on disclosure:
(1) G.S. 105-259 prohibits the disclosure of the information,
except in the limited circumstances provided in that
statute.
(2) The information may not be used as evidence, as defined
in G.S. 15A-971, in a criminal prosecution for an offense
other than an offense under this Article or under Article 9
of this Chapter. Under this prohibition, no officer,
employee, or agent of the Department may testify about the
information in a criminal prosecution for an offense other
than an offense under this Article or under Article 9 of this
Chapter. This subdivision implements the protections
against double jeopardy and self-incrimination set out in
Amendment V of the United States Constitution and the
restrictions in it apply regardless of whether information
may be disclosed under G.S. 105-259. This subdivision
does not apply to information obtained from a source other
than an employee, officer, or agent of the Department. This
subdivision does not prohibit testimony by an officer,
employee, or agent of the Department concerning an
offense committed against that individual in the course of
administering this Article. An officer, employee, or agent
of the Department who provides evidence or testifies in
violation of this subdivision is guilty of a Class 1
misdemeanor.
N.C. Gen. Stat. § 105-113.112 (2011).
Here, defendant subpoenaed Valsame, a North Carolina Department of
Revenue employee, to testify at the trial and produce “[a]ll documents related to the
Unauthorized Substance Tax action against [defendant].” After hearing arguments
from both the State and defendant on sections 105-259 and 105-113.112, the trial
court allowed Valsame’s motion to quash the subpoena. We cannot say that the trial
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Opinion of the Court
court’s decision to quash the subpoena was “manifestly unsupported by reason or
[was] so arbitrary that it could not have been the result of a reasoned decision.” Hurt,
___ N.C. App. at ___, 760 S.E.2d at 348.
N.C. Gen. Stat. § 105-113.112 (2011) clearly states that information obtained
by the Department of Revenue in the course of administering the unauthorized
substances tax is confidential tax information and cannot be used as evidence in a
criminal prosecution. No employee of the Department may testify about the
information in a criminal prosecution regardless of whether the information may be
disclosed under N.C. Gen. Stat. § 105-259. Id. (emphasis added). We conclude that
the trial court properly considered “the relevancy and materiality of the items called
for, [and] the right of the subpoenaed person to withhold production,” and, in its
discretion, decided to quash the subpoena. Newell, 82 N.C. App. at 709, 348 S.E.2d
at 160.
B. Ineffective Assistance of Counsel
“The two-part test for ineffective assistance of counsel is the same under both
the state and federal constitutions.” State v. Thompson, 359 N.C. 77, 115, 604 S.E.2d
850, 876 (2004) (citing State v. Braswell, 312 N.C. 553, 562–63, 324 S.E.2d 241, 248
(1985)). “A defendant must first show that his defense counsel’s performance was
deficient and, second, that counsel’s deficient performance prejudiced his defense.”
Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
“Deficient performance may be established by showing that counsel’s representation
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Opinion of the Court
fell below an objective standard of reasonableness.” Id. (citations and quotations
omitted). “Generally, to establish prejudice, a defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. (citations and quotations omitted).
Defendant argues that his attorney’s performance was deficient because he
breached his duty to conduct an adequate pre-trial investigation. Defendant claims
that this deficient performance prejudiced his defense because a “pre-trial
investigation of the plant material would have enabled [defendant] to successfully
keep State’s Exhibit 1 out of evidence.” The State argues that the cold record is
insufficient to evaluate defendant’s claim because a “review of the record and the
transcript does not reveal whether the failure to examine the marijuana prior to trial
was the result of trial tactics, strategy, lack of preparation or unfamiliarity with the
legal issues.”
“IAC claims brought on direct review will be decided on the merits when the
cold record reveals that no further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001). However, “should the reviewing court determine that IAC claims
have been prematurely asserted on direct appeal, it shall dismiss those claims
without prejudice to the defendant’s right to reassert them during a subsequent
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Opinion of the Court
[motion for appropriate relief] proceeding.” Id. at 167, 557 S.E.2d at 525.
Here, we determine that this claim has been brought prematurely and we
dismiss it without prejudice. See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271,
286 (2006) (“[W]hen it appears to the appellate court further development of the facts
would be required before application of the Strickland test, the proper course is for
the Court to dismiss the defendant’s assignments of error without prejudice.”).
III. Conclusion
The trial court did not abuse its discretion in quashing defendant’s subpoena.
We dismiss without prejudice defendant’s IAC claim.
AFFIRMED.
Judges STROUD and DIETZ concur.
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