{
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    "judges": [
      "Judges WALKER and McGEE concur."
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      "STATE OF NORTH CAROLINA v. BERNARD WILLIAM JONES, Defendant"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nDefendant appeals his convictions for trafficking in heroin by transportation and trafficking in heroin by possession. We overrule all assignments of error.\nThe evidence presented at trial that is pertinent to this appeal is as follows. On 10 August 1999, Defendant was contacted by Don Ray Hicks, Jr., a heroin addict who had purchased drugs from Defendant on many occasions over the preceding two years. Although Hicks had no money, he hoped to obtain heroin from Defendant on credit. Defendant and Hicks arranged to meet, and Defendant picked Hicks up in his car. Defendant sold Hicks on credit a small bag containing heroin (\u201cthe small bag\u201d); the bag was made by heating and compressing the comer of a ziploc bag.\nWhile Defendant and Hicks were driving, Defendant\u2019s car was spotted by Detective Kyle Evan Shearer of the Vice/Narcotics Unit of the Greensboro Police Department. Detective Shearer\u2019s suspicions were aroused by the fact that Defendant appeared to show him a lot of attention as Detective Shearer drove by Defendant\u2019s vehicle. Detective Shearer noted Defendant\u2019s license plate number and had his secretary run it. Detective Shearer\u2019s secretary discovered that Defendant\u2019s license had been suspended.\nDefendant had noticed Detective Shearer, who was not in uniform and was driving an unmarked vehicle, and suspected that he was a policeman. As Defendant drove away from the area, Detective Shearer followed him; Defendant became nervous, began to speed, and his driving grew erratic. Defendant then ceased speeding, but made several lane changes without signaling. According to Hicks, Defendant was attempting to determine whether Detective Shearer was following him; Defendant concluded that Detective Shearer was a policeman.\nDetective Shearer radioed for assistance because he was driving an unmarked car and was not in uniform, and Officer Hafkemeyer responded to the call. Defendant turned abruptly into an IHOP parking lot and stopped the car. Detective Shearer pulled up next to Defendant and identified himself as a police officer. Detective Shearer observed Defendant attempting to shove something made of baggie-type material into Hicks\u2019 hand. According to Hicks, Defendant forced him to take a bag of heroin and told him to go into the bathroom and flush it. This bag (\u201cthe large bag\u201d) was later determined to contain nine smaller baggies of heroin. Hicks left the car, followed by Officer Hafkemeyer. Hicks put the large bag that Defendant had given him into his pocket as he walked briskly into the IHOP. Hicks was carrying the small bag of heroin in his hand.\nAfter arresting Defendant for driving while his license was revoked or suspended, Detective Shearer entered the IHOP, where he found Officer Hafkemeyer subduing Hicks on the floor. When Hicks was brought to his feet, Detective Shearer noticed a small heat-sealed baggie containing an off-white powder lying on the floor. Hicks admitted that the powder was heroin. Detective Shearer searched Hicks and found a sandwich bag containing nine individual baggies of off-white powder and a syringe for injecting heroin.\nHicks was charged with possession of heroin. At the police station, Hicks waived his Miranda rights and gave a written statement. Hicks later pled guilty to the possession offense pursuant to a plea agreement requiring his truthful testimony against Defendant. After Defendant was informed of his rights, he requested an attorney; although Defendant told officers that he wanted to make a statement, Detective Shearer explained that he could not talk with Defendant until Defendant\u2019s attorney arrived. Defendant made a spontaneous statement, however, claiming that the drugs belonged to Hicks.\nDetective Shearer weighed the large bag of heroin and determined that it weighed 4.7 grams, including the packaging. As a result, he charged Defendant with trafficking in heroin. Agent H.T. Raney of the State Bureau of Investigation later determined that the large bag contained a total of 4.04 grams of heroin.\nIn his first assignment of error, Defendant argues that the trial court erred by allowing Detective Shearer\u2019s testimony regarding the fact that Defendant had invoked his right to remain silent and to have counsel present during questioning. Specifically, Defendant objects to the following colloquy between the prosecutor and Detective Shearer:\nQ. Let me show you what has previously been marked as State\u2019s Exhibit 15, and I\u2019ll ask you whether or not this is the document that you used for Mr. Jones?\nA. This is the exact same document. It\u2019s a Greensboro Police Department Advisement of Rights and Waiver Form, and, uh, this indicates, and as I recall, I advised Mr. Jones of his rights. He verbally answered \u201cyes\u201d to all his rights, stating he understood his rights, and he placed his signature, which is Bernard Jones.\nQ. And you recognize State\u2019s 15 to be the same document and in the same condition as when it was completed back on the date of the arrest?\nA. Yes, it is.\nQ. Tell me what happened after that.\nA. Mr. Jones, as I said, he carried himself well. He understood his rights. He stated he wanted an attorney before he said anything to us. Uh, however, then he would sit there and say he wanted to tell us what happened. He repeatedly said he wants to tell us what had happened, but he wants an attorney. Uh, I explained to him, since he already invoked his rights wishing an attorney, you know, that I wasn\u2019t going to talk to him.\nQ. Flipping to the last page, then, of your report, tell me about the exchange between you and Mr. Jones.\nA. Mr. Jones?\nQ. Yes.\nA. Mr. Jones, like I said, he continued to say that he wanted to talk to us but he wanted an attorney. I advised him that there was probably nothing else we could talk about, and as I was going out the door, uh, he basically said that, uh, let\u2019s see where I can start here. That he, uh, wanted to speak to us with an attorney. However, Mr. Jones continued to state that he wanted to tell me what had happened, and that all the dope that was found out there belonged to the white boy. And that was basically the gist of what he had said in the interview room. That was the extent of it.\nQ. And his demeanor from there, then?\nA. Like I say, he was very polite. Uh, he kept saying he wanted to talk to me, but he had already told me he wanted an attorney and, you know, once they say that, there\u2019s no reason for us to continue on with any conversation.\nDefendant concedes that his counsel did not object at trial to the admission of this testimony. Because counsel failed to object to the testimony at trial, we review any error under a plain error standard. See State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (applying plain error standard even when alleged error was constitutional).\nOur Supreme Court has held that the State may not introduce at trial evidence that a defendant exercised his constitutional rights. See id. (\u201cDefendant is correct in her assertion that the exercise of her constitutionally protected rights to remain silent and to request counsel during interrogation may not be introduced as evidence against her by the State at trial.\u201d); State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994) (\u201cThe defendant correctly points out that a defendant\u2019s exercise of his constitutionally protected rights to remain silent and to request counsel during interrogation may not be used against him at trial.\u201d); State v. Ladd, 308 N.C. 272, 283-84, 302 S.E.2d 164, 171-72 (1983) (holding that the trial court erred in admitting into evidence a defendant\u2019s statement that included invocation of his right to counsel).\nCiting State v. Williams, 305 N.C. 656, 674, 292 S.E.2d 243, 254-55, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), the State argues that the admission of the testimony here was not error because the testimony was not \u201cused to infer guilt.\u201d In Williams, a police officer testified that he had advised the defendant of his rights, then indicated that he wished to discuss a robbery and shooting with the defendant; the officer further testified that the defendant denied committing the crime and then asked for a lawyer, at which point the officer\u2019s questioning stopped. See id. at 673, 292 S.E.2d at 254. Our Supreme Court distinguished these facts in Williams from cases in which a defendant\u2019s silence in the face of an accusation is used to imply guilt, and concluded that the statements at issue were admissible because the defendant\u2019s request for a lawyer was not used by the State to infer guilt, and the defendant\u2019s statements were made voluntarily after a knowing and intelligent waiver of his rights. See id. at 674, 292 S.E.2d at 254-55. Williams preceded Ladd, however, in which our Supreme Court held that the admission of a defendant\u2019s statement in which he invoked his right to counsel was error. See Ladd, 308 N.C. at 284, 302 S.E.2d at 172. Thus, to the extent that Williams holds that a defendant\u2019s statement in which he invokes his right to counsel may be admissible, we find that it has been superseded by the holding in Ladd.\nThe State also asserts that the testimony at issue here should be admissible in order to show that Defendant knowingly and intelligently waived his rights in speaking with Detective Shearer. In support of this assertion, the State cites State v. White, 298 N.C. 430, 436-37, 259 S.E.2d 281, 285 (1979), and State v. Crawford, 83 N.C. App. 135, 138, 349 S.E.2d 301, 303 (1986), cert. denied, 319 N.C. 106, 353 S.E.2d 115 (1987). However, in these cases, the issue was whether statements made after the defendant had waived his rights were admissible, not whether a defendant\u2019s statements invoking his rights were admissible. Indeed, in White and Crawford, evidence regarding whether the defendants had knowingly and intelligently waived their rights was introduced on voir dire, not before the jury, and hence, the issue before us in this case was not presented. See White, 298 N.C. at 437, 259 S.E.2d at 286; Crawford, 83 N.C. App. at 136, 349 S.E.2d at 301.\nAlthough we agree with Defendant that the admission of the testimony was error, see Ladd, 308 N.C. at 284, 302 S.E.2d at 172, Defendant has failed to show that it was plain error. Under the plain error standard, Defendant must show \u201c(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Defendant has not met this burden. There was compelling evidence of Defendant\u2019s guilt introduced at trial, including Detective Shearer\u2019s testimony that he saw Defendant passing a baggie to Hicks; Hicks\u2019 testimony that Defendant passed him a plastic bag full of heroin; and Detective Shearer\u2019s testimony that a plastic bag full of heroin was found on Hicks. We conclude that it is not probable that a different result would have been reached had the testimony of Detective Shearer regarding Defendant\u2019s invocation of his rights been excluded. We also conclude that the admission of the testimony did not result in a miscarriage of justice or denial of a fair trial. Accordingly, this assignment of error is overruled.\nIn his second assignment of error, Defendant argues that he was denied effective assistance of counsel because his counsel failed to object to the testimony at issue in the first assignment of error. A defendant claiming ineffective assistance of counsel must demonstrate that his counsel\u2019s performance was defective and that this defective performance prejudiced the defense. See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). To show prejudice a defendant must show there is a \u201creasonable probability\u201d that \u201cabsent counsel\u2019s deficient performance, the result of the proceeding would have been different.\u201d State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987). Here, based on the evidence discussed above regarding the first assignment of error, we conclude that Defendant has failed to show that there is a reasonable probability that the result of the proceedings would have been different but for his counsel\u2019s failure to object to Detective Shearer\u2019s testimony. Accordingly, this assignment of error is overruled.\nIn his third and final assignment of error, Defendant argues that the trial court erred in denying his motion to dismiss the charges of trafficking in heroin due to insufficiency of the evidence regarding the amount of heroin that was attributed to Defendant. Section 90-95(h)(4) of the North Carolina General Statutes provides that \u201c[a]ny person who sells, manufactures, delivers, transports, or possesses four grams or more of opium or opiate, or any salt, compound, derivative, or preparation of opium or opiate ..., including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as \u2018trafficking in opium or heroin.\u2019 \u201d N.C. Gen. Stat. \u00a7 90-95(h)(4) (Supp. 2000). Based on the testimony of the State\u2019s expert witness, Agent H.T. Raney, Defendant contends that the 4.04 grams reported as the weight of the heroin in the large bag, which was attributed to him, included the packaging and/or weighing papers, so that the evidence was insufficient to show that the heroin attributed to Defendant weighed at least 4.0 grams.\nOn review of the trial court\u2019s denial of Defendant\u2019s motion to dismiss for insufficiency of the evidence on the drug amount, we must review the evidence introduced at trial in the light most favorable to the State to determine if there is \u201c \u2018substantial evidence\u2019 \u201d of this element of the offense. State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000) (quoting State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). \u201cSubstantial evidence is that which a reasonable juror would consider sufficient to support the conclusion\u201d that this element of the offense has been proven. Id.\nAfter a careful examination of Agent Raney\u2019s testimony, we conclude that there is substantial evidence that the large bag of heroin attributed to Defendant contained at least 4.0 grams, exclusive of its packaging or weighing papers. Agent Raney was asked on direct examination whether his analysis reflected the \u201ctotal contents\u201d of the nine smaller bags, and he answered in the affirmative, verifying that the total contents, which was heroin, weighed 4.04 grams. Agent Raney explained that the powder from each of the nine bags was removed from the smaller plastic comer packets and combined to obtain a total weight. During defense counsel\u2019s cross-examination, after Agent Raney explained that he combined the contents of all nine smaller bags in the same weighing tray to obtain a total weight, defense counsel asked, \u201cAll of the glassine envelopes; is that what you\u2019re saying?\u201d, and Agent Raney clarified, \u201cThe contents of each one of those; yes, sir.\u201d We believe that on the basis of this testimony, a reasonable juror would have concluded beyond a reasonable doubt that the large bag contained at least 4.0 grams of heroin, exclusive of packaging or weighing papers. Accordingly, this assignment of error is overruled.\nNo prejudicial error.\nJudges WALKER and McGEE concur.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
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    "attorneys": [
      "Attorney General Roy Cooper, by Mark J. Pletzke, Assistant Attorney General, for the State.",
      "Clifford, Glendenin, O\u2019Hale & Jones, L.L.P., by Walter L. Jones, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BERNARD WILLIAM JONES, Defendant\nNo. COA00-1146\n(Filed 2 October 2001)\n1. Confessions and Incriminating Statements\u2014 invocation of rights to silence and counsel-detective\u2019s testimony \u2014 no plain error\nThe trial court did not commit plain error in a trafficking in heroin case by allowing a detective\u2019s testimony regarding the fact that defendant had invoked his right to remain silent and to have counsel present during questioning, because: (1) defendant failed to show a different result would have been reached but for the error when there was evidence that a detective saw defendant passing a baggie to his coparticipant, the coparticipant testified that defendant passed him a plastic bag full of heroin, and the detective testified that a plastic bag full of heroin was found on the coparticipant; and (2) the admission of the testimony did not result in a miscarriage of justice or denial of a fair trial.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object\nA defendant was not denied effective assistance of counsel in a trafficking in heroin case based on his counsel\u2019s failure to object to a detective\u2019s testimony regarding the fact that defendant had invoked his right to remain silent and to have counsel present during questioning, because defendant has failed to show that there is a reasonable probability that the result of the proceedings would have been different but for his counsel\u2019s failure to object.\n3. Drugs\u2014 trafficking in heroin \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of trafficking in heroin under N.C.G.S. \u00a7 90-95(h)(4) based on alleged insufficient evidence regarding the amount of heroin, because there is substantial evidence that the large bag of heroin attributed to defendant contained at least 4.0 grams exclusive of its packaging or weighing papers.\nAppeal by Defendant from judgment entered 4 May 2000 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 22 August 2001.\nAttorney General Roy Cooper, by Mark J. Pletzke, Assistant Attorney General, for the State.\nClifford, Glendenin, O\u2019Hale & Jones, L.L.P., by Walter L. Jones, for defendant-appellant."
  },
  "file_name": "0394-01",
  "first_page_order": 426,
  "last_page_order": 433
}
