An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                           -2-
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
                                   -3-
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
                                          -4-
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
                                          -5-
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
                                      -6-
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).
