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State v. Flood

Court of Appeals of North Carolina

November 18, 2014

STATE OF NORTH CAROLINA
v.
JARMAL FLOOD

Heard in the Court of Appeals September 9, 2014

Page 66

Appeal by the State from order filed 20 December 2013, nunc pro tunc 30 August 2013, by Judge Richard T. Brown in Superior Court, Hoke County, Nos. 12 CRS 00662; 12 CRS 50264-71.

Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.

Paul F. Herzog for Defendant.

McGEE, Chief Judge. Judges BRYANT and STROUD concur.

OPINION

Page 67

McGEE, Chief Judge.

The State appeals the trial court's order allowing Defendant's motion to suppress incriminating statements made by Defendant during a non-custodial interview with law enforcement that implicated him in a child sex offense investigation. We reverse.

I. Background

Defendant previously served in the New Hanover County Sheriff's Office for four years as a deputy sheriff, courtroom bailiff, and custody deputy, and he also completed Basic Law Enforcement Training. Defendant was arrested in 2007 and subsequently was convicted for sex by a substitute parent, on a charge unrelated to the present case. Defendant went to prison for that conviction and was on probation and receiving treatment as a sex offender when the following events occurred.

Detective Donald Schwab (" Detective Schwab" ) of the Hoke County Sheriff's Office received a report in early December 2011 that Defendant had sexually abused some children (" the children" ). Defendant voluntarily met with Detective Schwab on 12 December 2011 at the Pender County Sheriff's Office, and Defendant denied committing the offenses. Defendant subsequently agreed to undergo a polygraph examination.

Agent Kelly Oaks (" Agent Oaks" ), a certified polygraph examiner with the North Carolina State Bureau of Investigation (" SBI" ), met with Defendant on 20 December 2011 at the Pender County Sheriff's Office. Agent Oaks conducted a polygraph examination

Page 68

with Defendant (" the polygraph" ). Throughout this process, Defendant was not in custody, was given multiple breaks, and was told he was free to leave at any time. Defendant was even informed that he would not be arrested that day, no matter what he said to law enforcement.

Defendant failed the polygraph, and Agent Oaks interviewed Defendant about why he had not passed the polygraph (" the interview" ). Defendant repeatedly denied that he had done anything wrong, but Agent Oaks pressed him on the issue for about fifty minutes. During the interview, Agent Oaks made numerous statements that she and Detective Schwab might help Defendant or make " recommendations" to the District Attorney's office, including recommending treatment rather than jail time, if Defendant confessed. At times, Agent Oaks indicated that the District Attorney's office would have discretion as to what it would do with their recommendations. Agent Oaks also stated that any offer to help Defendant would expire once their conversation ended.

Detective Schwab joined Agent Oaks and Defendant a little over forty minutes into the interview. Detective Schwab talked about Defendant's former role as a law enforcement officer. He also spoke to Defendant about sparing Defendant's mother from having to hear the details of the crime at trial, as well as sparing the children from having to testify. After almost five minutes of listening to Detective Schwab, Defendant asked to speak to his mother on the phone. Agent Oaks again admonished that any offer to help Defendant would expire once their conversation ended. Nonetheless, Detective Schwab obliged Defendant's request and lent Defendant his cell phone. All three then took a brief break and left the interrogation room.

During the break, Defendant spoke to his mother on the phone and then to Detective Schwab outside the interrogation room; Defendant asked Detective Schwab what he should do, and Detective Schwab repeated the same sentiments he had previously conveyed to Defendant in the interrogation room. Agent Oaks, Detective Schwab, and Defendant then reentered the interrogation room, and Defendant began making incriminating statements regarding his having had sexual contact with a child.

Defendant was indicted on 30 July 2012 for rape of a child by an adult, first-degree rape, taking indecent liberties with a child (seven counts), attempted first-degree rape, sexual activity by a substitute parent (three counts), first-degree sexual offense (two counts), and first-degree sexual exploitation of a minor (two counts). Defendant filed a motion on 30 May 2013 to suppress the statements he had made to Agent Oaks and Detective Schwab during the interview on 20 December 2011. In his motion to suppress, Defendant asserted that, during the interview, Agent Oaks made improper promises that she and Detective Schwab would help Defendant if he confessed, which deceived him and rendered Defendant's subsequent incriminating statements involuntary. Defendant argued, in part, that this violated his rights under the due process clause of the United States Constitution.

Defendant's motion to suppress was heard on 19 August 2013. The trial court orally allowed Defendant's motion to suppress and subsequently entered a written order ...


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