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State v. Thorpe

Court of Appeals of North Carolina

February 18, 2014

STATE of North Carolina
Devine Drakkar THORPE.

Heard in the Court of Appeals 12 December 2013.

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Appeal by defendant from order entered 28 July 2011 by Judge Orlando Hudson and judgment entered 3 August 2011 by Judge Carl R. Fox in Durham County Superior Court.

Attorney General Roy Cooper, by Assistant Attorney General Melissa H. Taylor, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Devine Thorpe (" Defendant" ) appeals from the denial of his motion to suppress, arguing (1) that the conduct and duration of his detention constituted a warrantless arrest that required probable cause; (2) that statements taken at the police station after his arrest were impermissible fruits of the unlawful arrest; (3) that Defendant's statement taken in a police car was done in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (4) that Defendant's statements to the arresting officer were coerced; and (5) that Defendant's statements taken at the police station were also taken in violation of the United States Supreme Court's ruling in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

We conclude that the trial court failed to make adequate findings to permit review of its determination that Defendant was not placed under arrest when he was detained for nearly two hours. Specifically, on remand the trial court must make appropriate findings about whether Officer Mellown diligently

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pursued his investigation so as to justify an extended detention.

I. Facts & Procedural History

On 7 February 2011, Defendant was indicted in Durham County on one count of Felonious Breaking and/or Entering and one count of Conspiracy to Commit Felonious Breaking and Entering. On 25 April 2011, Defendant moved to suppress the oral and written statements he made to investigating officers, alleging that they were taken in violation of his Fourth, Fifth, Sixth and Fourteenth Amendment rights. The State moved to dismiss Defendant's motion. Durham Superior Court Judge Orlando Hudson held a suppression hearing on Defendant's motion on 29 June 2011. The trial court denied Defendant's motion to suppress orally at the hearing and filed a written order on 28 July 2011. The transcript of the hearing tended to show the following facts.

T.J. Mellown (" Officer Mellown" ) is an investigator with the Durham County Sheriff's Office, where he has worked since August 1997. Officer Mellown testified that on 10 December 2010, he was on duty as radio calls were made about the incident around 11:00 a.m. Officer Mellown said there were " various calls on the radio that there had been a subject who had been found shot" and that a residence was broken into in the southern part of Durham County. Officer Mellown also said there were conflicting radio reports of multiple subjects fleeing the scene. Officer Mellown said he heard that a number of other officers were heading to the scene, so instead he went to Duke Hospital arriving around 11:00 a.m. Officer Mellown previously worked in emergency medicine and said

I've seen situations like this that have happened before where people have been shot during the commission of a crime. My experience has been that, lots of times, people will drive themselves to the hospital. I thought that if one person had been shot, there was a chance that other people had been shot, and so I went to the ER to see if anybody would show up.

When Officer Mellown reached Duke Hospital, he testified that he parked his vehicle in front of the emergency department and stepped inside the hospital. Officer Mellown told the security guards why he was present and that he " was waiting to see if anyone would show up from this incident." Officer Mellown said he began " calling the emergency departments over at Durham Regional Hospitals and also at UNC Hospitals" to ask them to contact him if anyone arrived in a personally owned vehicle with a gunshot wound.

After " approximately ten minutes," Officer Mellown testified he saw a white Dodge Charger pull in front of the emergency room. Officer Mellown said two men, Defendant and Gary Brady (" Brady" ), pulled a critically injured passenger from the front passenger seat. Officer Mellown believed the man was shot and said " it looked like he was going to die in about the next hour or so." Officer Mellown saw Defendant as one of the men pulling the passenger from the car, although he " wasn't sure what his role was in relation to this incident at all," but that he had a " hunch" that Defendant was involved.

Officer Mellown said he was concerned about the safety of Defendant and the public, and so he attempted to detain Defendant and the other young man as they approached the front of the hospital. Officer Mellown frisked both Defendant and Brady, although he " did not know what was going on" at that time. Officer Mellown said Defendant and Brady were " very emotionally charged up. They were upset, they were excited. When I tried to tell them that I needed to pat them down, that I needed to figure out what was going on before anything else happened, there was a lot of yelling back and forth." Officer Mellown said Defendant and Brady " told [him] that [he] did not have the right to detain them, that [he] didn't have the right to pat them down." Officer Mellown said it took a few minutes to calm everyone down to a level where he could proceed. Officer Mellown then performed a pat down and found no weapons on Defendant or Brady. During the pat down, Officer Mellown noticed a gunshot wound to Brady's arm and subsequently Brady was taken by the Duke nursing staff for treatment.

Officer Mellown said he then handcuffed Defendant, took Defendant to his police car,

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put Defendant in the front passenger seat, and then sat in the driver's seat next to Defendant. Officer Mellown told Defendant " he was being detained, and I had to find out what was going on before I knew what to do." Officer Mellown explicitly told Defendant he was not under arrest, but also said Defendant was not free to leave his vehicle.

Officer Mellown said Defendant " made no verbal threats," but that Defendant " was edging into personal space" while Officer Mellown was frisking Brady. Officer Mellown did not provide Miranda warnings at that time to Defendant, and began asking where the man who was shot came from, Defendant's date of birth, and other demographic questions. Defendant responded to Officer Mellown's questioning by telling him he was playing " video games with some people on the house on Rowena Avenue, and that he [received] a phone call saying that his cousin had been shot in some area behind Parkwood, and that he went there, picked up his cousin, and drove him to the hospital." Officer Mellown said he went through this story a few times with Defendant, who at that point did not admit to anything beyond that statement. Officer Mellown's " concern[s] about gang reprisals kind of went away after [Defendant] told me where they picked up the gentleman who had been shot at."

After ten or fifteen minutes of questioning, Officer Mellown placed Defendant with one of the security guards at the hospital, and " left him sort of in the care of him," while Defendant was still handcuffed. Officer Mellown then went to speak with Brady, saying that there was not a " solemn decision that [Defendant] was going to be arrested" at that time. Defendant was not placed under formal arrest until he was taken to the police station at around 1 p.m.

Officer Mellown said he placed Defendant under formal arrest because he received " statements from some of the other persons involved as to why they had been there ... that they were involved in breaking into the residence, that this was related to the shooting for which I had gone out to the ER." Officer Mellown also researched the location of Rowena Avenue and said Defendant's statements of traveling from Rowena to Parkwood to retrieve his wounded cousin were not feasible given the timing and sequence of events. Officer Mellown also spoke with Brady, who stated that " they" were driving around, broke into a home, and were shot. After Brady was given Miranda warnings, he declined to make any further statements.

Defendant was transported by other officers in a " marked car, with the cage in the back" to the police station. At the police station, Defendant was advised that he was under arrest and given Miranda warnings. Defendant asked why he was under arrest and began to cry once being informed he was under arrest. Officer Mellown was present during the videotaped interview and was accompanied by Sergeant Davis. Officer Mellown said Sergeant Davis raised his voice during the interview, pointed his finger at Defendant, and told Defendant to cooperate with Officer Mellown. Defendant waived his Miranda rights at that time orally and shortly after by written waiver. After the videotaping ceased, Officer Mellown asked Defendant to clarify his statement to add an admission of breaking and entering, which Officer Mellown said Defendant admitted during their conversation.

In the videotaped interview, Officer Mellown said Defendant admitted to taking part in the breaking and entering of the home:

He told me that he had spent the night at a house on Ruby Ridge, which is a small housing development in eastern Durham, and that he had spent the night there. Some people came over and woke him up at, I believe, about 8:30 in the morning.
They asked him to— they asked him to drive them around. Eventually, they drove to a small area behind Parkwood, where they asked him to let them off at a small house that he described as, I think, being tucked back in the woods.
He drove around a little bit. They gave him a call on a cell phone. He drove back to the area, and found that his— I believe the gentleman's name was Omari Eubanks had been shot in the back. And he was lying on the— on the yard outside one of the neighboring residences.

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And, I'm sorry, I'm not sure if it was Omari that he picked up or the other one. But one of his companions had been shot in the back, was lying in ...

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