              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-709

                                Filed: 26 March 2019

McDowell County, No. 16 CRS 376

STATE OF NORTH CAROLINA

             v.

VIRGINIA LEE LOFTIS


      Appeal by defendant from judgments entered 6 December 2017 by Judge

Jeffrey P. Hunt in McDowell County Superior Court. Heard in the Court of Appeals

26 February 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Kevin
      G. Mahoney, for the State.

      Joseph P. Lattimore for defendant.


      DIETZ, Judge.


      Defendant Virginia Lee Loftis appeals her convictions for trafficking in

methamphetamine, possession of methamphetamine, and maintaining a dwelling

place for keeping and selling controlled substances. Her two arguments share a

common theme—an effort to shift the responsibility to preserve arguments and build

an appellate record away from defense counsel and onto the trial court.

      We reject these arguments. Loftis first contends that the trial court erred by

failing, on its own initiative, to conduct a voir dire hearing to confirm that Loftis’s
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incriminating in-custody statements to law enforcement were knowing and

voluntary. But Loftis did not move to suppress those statements—either before or

during trial. Thus, the trial court properly overruled her objection to the admission

of those statements without conducting a hearing (which Loftis never requested)

because her constitutional challenge to admissibility was procedurally barred.

      Loftis next contends that the trial court failed to personally discuss with her

the consequences of stipulating to the admissibility of a forensic laboratory report,

which waived her right to confront the forensic expert who performed the analysis.

As explained below, when a stipulation to the admissibility of evidence is, in effect, a

confession of guilt, the trial court must address the defendant directly. But where, as

here, the stipulation was not an admission of guilt, and left the defendant free to

assert that the State had not met its burden of proof on other grounds, the obligation

to inform the defendant of the consequences of waiving Confrontation Clause rights

rests with defense counsel. Accordingly, the trial court did not err by accepting the

stipulation—made by Loftis’s counsel in her presence in open court—without first

addressing Loftis directly and discussing the consequences of that stipulation.

                          Facts and Procedural History

      On 7 April 2016, law enforcement executed a search warrant at a mobile home

in McDowell County where Defendant Virginia Loftis was present with her boyfriend,




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Franklin Barlow. An officer placed Loftis in handcuffs and read Loftis her Miranda

rights.

      Officer Shane Vance then asked Loftis where the drugs were in the house and

Loftis responded that she would tell him in exchange for a cigarette. Officer Vance

gave Loftis a cigarette and she showed officers where to find the drugs. Based on the

information from Loftis, officers recovered plastic bags containing a “crystal white

substance” from inside a camera bag, along with drug paraphernalia, including

plastic baggies and a smoking device. Officers also found a pink diary containing what

appeared to be a ledger of drug transactions.

      While Loftis was being held in detention following the search, she asked to

speak with law enforcement. Lieutenant Chris Taylor and Agent Jackie Turner

responded to her request. The officers again read Loftis her Miranda rights. Loftis

waived her Miranda rights. Loftis then told the officers that the names in the pink

diary “were the names of the people that owed her money for methamphetamine.”

Loftis also described traveling to Asheville to “meet with her source of

methamphetamine”      and    purchasing     “at   least   two   to   three   ounces   of

methamphetamine every three days.”

      Law enforcement submitted the seized substance to the SBI laboratory for

forensic chemical analysis. An SBI analyst determined that the substances recovered

during the search contained methamphetamine and weighed 40.81 grams.



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      On    18   June   2016,   the   State      indicted   Loftis   for   trafficking   in

methamphetamine, possession of methamphetamine with intent to sell or deliver,

and maintaining a dwelling for keeping and selling methamphetamine. Loftis did not

make a pretrial motion to suppress any evidence and her case went to trial on 4

December 2017.

      At trial, Loftis’s counsel stipulated to the admission of the forensic laboratory

report in open court, in Loftis’s presence, which meant the State would not need to

call the forensic expert who performed the analysis.

      On   6 December 2017, the jury             convicted Loftis of trafficking         in

methamphetamine, maintaining a dwelling place for keeping and selling controlled

substances, and the lesser-included offense of possession of methamphetamine. The

trial court sentenced Loftis to 70 to 93 months in prison and a $50,000 fine for the

trafficking charge. The trial court consolidated the two remaining charges and

imposed a consecutive sentence of 120 days. Loftis gave oral notice of appeal.

      On 7 December 2017, the trial court resentenced Loftis on the two consolidated

charges to correct its judgment to reflect that possession of methamphetamine is a

Class I felony carrying a sentence of 6 to 17 months in prison. Loftis did not give

notice of appeal following resentencing.




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                                     Opinion of the Court



                                         Analysis

   I.       Petition for a Writ of Certiorari

         Loftis petitions this Court for a writ of certiorari in connection with this appeal

because, although she gave timely notice of appeal after her initial sentencing, she

failed to give notice of appeal following her resentencing and the entry of the corrected

judgment the following day. This Court has discretion to issue a writ of certiorari to

review issues for which the right to appeal was lost by failure to take timely action.

State v. Bishop, __ N.C. App. __, __, 805 S.E.2d 367, 369 (2017). Because Loftis’s

actions indicate an unmistakable intent to appeal that was lost solely because of the

failure to timely act, we exercise our discretion and allow the petition for a writ of

certiorari. N.C. R. App. P. 21.

   II.      Challenge to Admission of Custodial Statements

         Loftis first argues that the trial court violated her Fifth, Sixth, and Fourteenth

Amendment rights by admitting incriminating custodial statements she made to law

enforcement without first conducting a hearing outside the presence of the jury to

ensure that Loftis knowingly and voluntarily waived those rights.

         Loftis acknowledges that she did not move to suppress the statements at any

time in the trial court. Likewise, she acknowledges that she never asked for a hearing

from the trial court—her counsel said the word “objection” when the State first asked




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about those statements and, when the trial court immediately overruled the

objection, counsel said nothing more.

      Nevertheless, Loftis argues on appeal that the trial judge “abdicated his

constitutional duty to ensure that improperly obtained statements do not reach the

jury” by failing, on the court’s own initiative, to stop the trial, excuse the jury, and

conduct a hearing on the voluntariness issue. We reject this argument.

      Loftis relies on a series of cases from the early 1970s holding that a defendant’s

incriminating statements while in custody “when offered by the State as substantive

evidence and objected to by defendant are not admissible until after a voir dire

hearing in the absence of the jury” where the court addresses the voluntariness issue

on the record. State v. Gregory, 16 N.C. App. 745, 748, 193 S.E.2d 443, 446 (1972).

But this line of cases arose before the Criminal Procedure Act in 1973, which requires

these constitutional challenges to be pursued in a timely motion to suppress. See N.C.

Gen. Stat. § 15A-979(d). Although some of the cases cited by Loftis came after the

General Assembly enacted Section 15A-979(d), those cases did not acknowledge the

procedural requirement to move to suppress or the language in Section 15A-979(d)

making the motion to suppress “the exclusive method of challenging the

admissibility” of this type of evidence.

      Then, in the early 1980s, this Court again addressed a defendant’s argument

that the trial court “committed prejudicial error in admitting [an incriminating in-



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custody] statement without establishing that he understood and waived his

constitutional rights.” State v. Conard, 54 N.C. App. 243, 244, 282 S.E.2d 501, 503

(1981). We held that this argument was procedurally barred because the defendant

failed to move to suppress the statement. We explained that “defendant made no

motion to suppress, and his general objection was not accompanied by any allegation

of a legal basis for suppressing the evidence. It follows therefore that the trial judge

had statutory authority to summarily deny defendant’s objection.” Id. at 245, 282

S.E.2d at 503.

      Since Conard, this Court repeatedly has held that objections to use of a

defendant’s in-custody statements were procedurally barred because the defendant

failed to make a timely motion to suppress. See, e.g., State v. Armstrong, 165 N.C.

App. 544, 600 S.E.2d 899 (2004) (unpublished); State v. Wilkins, 203 N.C. App. 741,

693 S.E.2d 281 (2010) (unpublished); State v. Reavis, 207 N.C. App. 218, 223, 700

S.E.2d 33, 37 (2010). In Reavis, for example, this Court held that a defendant who

objected at trial but did not show that “the State failed to disclose the evidence of his

interview or statement in a timely manner” had waived this constitutional challenge

because the defendant “failed to bring himself within any of the exceptions to the

general rule. . . . Thus, defendant’s objection at trial to the admissibility of the

evidence is without merit because the objection, treated as a motion to suppress, was

not timely made.” Id.



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      This line of cases is consistent with our Supreme Court’s precedent, which also

repeatedly has held that these types of constitutional challenges must be brought in

a timely motion to suppress. See, e.g., State v. Miller, __ N.C. __, __, 814 S.E.2d 81,

83 (2018). Here, Loftis did not move to suppress before trial and does not assert on

appeal that any exception applied to permit her to move to suppress during trial.

“When no exception to making the motion to suppress before trial applies, failure to

make the pretrial motion to suppress waives any right to contest the admissibility of

the evidence at trial on constitutional grounds.” State v. Detter, 298 N.C. 604, 616,

260 S.E.2d 567, 577 (1979). Accordingly, the trial court properly overruled Loftis’s

objection as procedurally barred.

   III.   Stipulated Admission of Forensic Laboratory Report

      Loftis next argues that the trial court committed plain error by admitting a

forensic laboratory report, after Loftis stipulated to its admission, because the trial

court failed to engage in a personal colloquy with Loftis “ensuring that Ms. Loftis

personally waived her 6th amendment right to confront the chemist” whose testimony

otherwise would be necessary to admit that report.

      “For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d

326, 334 (2012). Plain error should be “applied cautiously and only in the exceptional

case” where the error “seriously affect[s] the fairness, integrity or public reputation



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of judicial proceedings.” Id. at 516–17, 723 S.E.2d at 333. As explained below, the

trial court did not err, and certainly did not plainly err, by admitting the lab report.

      This Court has held that “the waiver of Confrontation Clause rights does not

require the sort of extensive colloquy needed to waive the right to counsel or enter a

guilty plea.” State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018). In Perez,

the defendant and his counsel “signed written stipulations to admit the lab reports

without the requirement that they be accompanied by witness testimony.” Id. Perez

argued “that the trial court erred by permitting him to stipulate to the admission of

the forensic laboratory reports without engaging in a colloquy to ensure he

understood the consequences of that decision.” Id. at __, 817 S.E.2d at 614. This Court

rejected Perez’s argument and found no error, expressly declining Perez’s “request to

impose on the trial courts an obligation to personally address a defendant whose

attorney seeks to waive any of his constitutional rights via stipulation with the State.”

Id. We further noted that if a defendant “did not understand the implications of

stipulating to the admission of the lab reports at trial, his recourse is to pursue a

motion for appropriate relief asserting ineffective assistance of counsel.” Id. at __, 817

S.E.2d at 615.

      Loftis attempts to distinguish Perez by arguing that the case involved a written

stipulation personally signed by the defendant, while this case involves an oral

stipulation by defense counsel made in the defendant’s presence. This is a distinction



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without a difference. The Perez holding is based not on the form of the stipulation

(oral versus written) but on the subject matter of the stipulation. As this Court has

held (in a case, somewhat confusingly, also captioned State v. Perez), a stipulation

that amounts to a “concession of guilt” requires the trial court to confirm with the

defendant that “he had discussed the concession with his counsel and had authorized

it, and the defendant thereafter acknowledged that his counsel had made the

argument desired by him.” State v. Perez, 135 N.C. App. 543, 548, 522 S.E.2d 102,

106 (1999). The reason for this rule, as Perez explains, is that this type of stipulation

during trial “has the same practical effect as a guilty plea, because it deprives the

defendant of his right against self-incrimination, the right of confrontation and the

right to trial by jury.” Id. at 547, 522 S.E.2d at 106.

      By contrast, in the more recent Perez decision, and in this case, the stipulation

is to the admissibility of a piece of incriminating evidence that does not amount to an

admission of guilt. Here, for example, Loftis’s central theory of the case was that the

State failed to prove she possessed the illegal drugs, which were found in a mobile

home occupied by both Loftis and her boyfriend. Thus, stipulating to the admission

of the report was not the equivalent of a guilty plea; Loftis continued to present her

case and contend, at oral argument, that the State had not met its burden of proof.

And, as we observed in Perez, there are many strategic reasons why a defendant like

Loftis might benefit from stipulating to a forensic report confirming a seized



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substance was illegal drugs—most obviously to avoid having the State call a credible

forensic expert to discuss the testing in detail and potentially distract the jury from

the key points of the defense case. Perez, __ N.C. App. at __, 817 S.E.2d at 615.

      Accordingly, we once again decline to impose on the trial courts a categorical

obligation “to personally address a defendant” whose counsel stipulates to admission

of a forensic report and corresponding waiver of Confrontation Clause rights. That

advice is part of the role of the defendant’s counsel. The trial court’s obligation to

engage in a separate, on-the-record colloquy is triggered only when the stipulation

“has the same practical effect as a guilty plea.” Perez, 135 N.C. App. at 547, 522 S.E.2d

at 106. Accordingly, we find no error, and certainly no plain error, in the trial court’s

admission of the forensic laboratory report upon the oral stipulation of Loftis’s

counsel, in her presence, in open court.

                                     Conclusion

      We find no error in the trial court’s judgments.

      NO ERROR.

      Chief Judge McGEE and Judge DAVIS concur.

      Judge Davis concurred in this opinion prior to 25 March 2019.




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