Appeal by defendant from judgments entered 17 March 2005 by
Judge David S. Cayer in Gaston County Superior Court. Heard in the
Court of Appeals 22 May 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Leslie C. Rawls for defendant-appellant.
Defendant Jaime Alejandro Lopez appeals from his convictions
of trafficking by sale, possession, transportation, and delivery,
possession of cocaine with intent to sell and deliver, and carrying
a concealed weapon. Defendant argues on appeal that the trial
court committed plain error by allowing testimony referencing
defendant's invocation of his right to remain silent and to have an
attorney. We hold that, even assuming arguendo that the testimony
was inadmissible, defendant has failed to demonstrate plain error.
The State's evidence tended to show the following facts. On
4 February 2004, Paul Solas, a confidential informant, contacted
Detective Barry Crisp of the City of Gastonia Police Departmentregarding a potential drug deal. That afternoon, Detective Crisp
and Officer Scott Barnes went to Solas' house. At the request of
Detective Crisp, Solas called a Hispanic man named "Adrian" and
arranged for a $100,000.00 purchase of five kilograms of cocaine.
Adrian (who was subsequently determined to be Adrian Guevara) was
expected to drive up from Atlanta, Georgia, followed in another car
driven by a Hispanic male, and arrive in Gastonia around 5:00 p.m.
on 5 February 2004. The police planned for the transaction to take
place at the Fairfield Inn on Remount Road and set up surveillance
at the Inn.
On the afternoon of 5 February 2004, the police escorted Solas
to a hotel room at the Inn. The arrest and surveillance teams were
in an adjoining room. After Solas and Guevara spoke on the phone
at around 4:20 p.m., two Hispanic males, Guevara and defendant,
arrived at the Fairfield Inn in a white Pontiac with Georgia
plates. Guevara exited the car and proceeded to Solas' room, while
defendant remained in the Pontiac with the engine running. Guevara
entered Solas' room, spoke with Solas, and made a call on his cell
phone. Defendant then exited the Pontiac, put an item under his
leather jacket and also went to Solas' room.
Upon entering Solas' room, defendant pulled out a package and
threw it on the bed next to Guevara. Solas asked defendant about
the quality of the cocaine, and defendant responded that it was
good quality; it had not been "stomped on." Guevara took the
package from defendant and began to open it on the bed. Solas gave
the "go" signal, and the arrest team entered Solas' room. As Officer Barnes attempted to restrain defendant, defendant
reached for his right front pants pocket. Officer Barnes grabbed
defendant's hand and discovered that defendant was grasping a
loaded .38 caliber revolver. The officers recovered one kilogram
of cocaine on the bed and another kilogram of cocaine in the
Defendant was charged with trafficking by sale, trafficking by
possession, trafficking by transporting, trafficking by delivery,
possession with intent to sell and deliver cocaine, and carrying a
concealed weapon. A jury found defendant guilty of all the
charges. The trial court sentenced defendant to two consecutive
terms of 175 to 219 months imprisonment. Defendant timely
Defendant contends the trial court committed plain error when
it allowed the State to elicit testimony from Officer Barnes and
Detective Crisp regarding defendant's invocation of his Miranda
rights. When the prosecutor asked Officer Barnes what happened
after defendant was transported to the police station, Officer
A. Before they were transported from the
room, Detective Holloway began to try to speak
to them, advised them of their rights; and Mr.
Lopez and Mr. Guevara at that time advised
that they did not want to speak to law
enforcement, they wanted to speak to their
Q. And Detective Holloway is someone
who's fluent in Spanish, is he not?
Q. And you were present when Mr. Lopez
was read his Miranda rights.
A. Yes, sir.
The following exchange occurred during the prosecutor's
questioning of Detective Crisp regarding the events that took place
at the police station:
Q. Did you have any dealings at all with
either Mr. Lopez or Mr. Guevara on that day?
A. At the police department, Mr. Lopez, I
Q. And tell us about what, if any,
dealings you had with Mr. Lopez at that time.
A. He was in an interview room at the
police department. Detective Holloway had
already told they weren't involved [sic], that
he did not want to speak other than he wanted
to talk to his attorney. And at that point I
went in for basic questions on the arrest
sheet, name, date of birth, stuff like that.
He was communicating back to me in English.
Q: Now, the person that you're
identifying, referring to as Mr. Lopez, do you
know what his full name is?
A: I just know it by Jaime Lopez.
[Detective then identified the defendant
Q. . . . So Detective Crisp, once you
arrived back there at the police station, Mr.
Lopez did not give you any information through
any interpreter regarding the transaction, is
A. Regarding the transaction, no.
Q. But he was provided that opportunity,
was he not?
A. Basically, when Detective Holloway
advised us that he's invoked his Miranda
rights, we [were] not going to go and ask anyquestions about what had took [sic] place.
Thus, during their testimony, both officers specifically referenced
defendant's invocation of his right to remain silent and to have an
Defendant correctly asserts that the exercise of his
constitutionally protected rights to remain silent and to request
counsel during interrogation may not be introduced as evidence
against him at trial. State v. Elmore
, 337 N.C. 789, 792, 448
S.E.2d 501, 502 (1994). A violation of a defendant's rights under
the Constitution of the United States is prejudicial unless the
State shows the error to be harmless beyond a reasonable doubt.
N.C. Gen. Stat. § 15A-1443(b) (2005).
As defendant concedes, however, he did not object to the
officers' testimony at trial. This Court will not ordinarily
consider a constitutional argument raised for the first time on
appeal. State v. Allen
, __ N.C. __, __, 626 S.E.2d 271, 284
(2006). Nevertheless, in State v. Alexander
, 337 N.C. 182, 196,
446 S.E.2d 83, 91 (1994), our Supreme Court applied plain error
analysis to an identical constitutional argument. We may reverse
for plain error:
"only in the exceptional case where, after
reviewing the entire record, it can be said
the claimed error is a 'fundamental
something so basic, so prejudicial, so lacking
in its elements that justice cannot have been
done,' or 'where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,' or the error has
'"resulted in a miscarriage of justice or in
the denial to appellant of a fair trial"' or
where the error is such as to 'seriously
affect the fairness, integrity or publicreputation of judicial proceedings' or where
it can be fairly said '[the error] mistake had
a probable impact on the jury's finding that
the defendant was guilty.'"
State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill
, 676 F.2d 995, 1002 (4th Cir.),
, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381
In this case, the evidence against defendant was substantial.
Defendant's guilt was supported by a surveillance tape and the
testimony of Solas and co-defendant Guevara. As noted, it was
undisputed that defendant exited the Pontiac, placed a package
containing one kilogram of cocaine under his jacket, went to Solas'
room, and put the package on the bed. Further, Solas testified
that when asked, defendant told him that the cocaine was good
quality. Then, as the arresting team arrived at Solas' room,
defendant reached for a loaded revolver. Although defendant argues
that the only evidence of his knowledge that the package contained
cocaine came from his co-defendant, both Solas' testimony and
defendant's drawing a revolver in response to the arrival of the
police strongly corroborate that testimony. Given this evidence,
we cannot conclude that the jury would probably have reached a
different result absent the officers' testimony. Accordingly,
defendant has failed to present grounds sufficient to overturn his
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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