North Carolina Lawyers Weekly
State v. Crook (Lawyers Weekly No. 011-194-16, 22 pp.) (Rick Elmore, J.) Appealed from Henderson County Superior Court (Marvin Pope Jr., J.) N.C. App.
Holding: Where defendant had been handcuffed and arrested before he was asked, “Do you have anything else on you?”, but where he had not been given his Miranda warnings, his response – “I have weed in the room” – should have been suppressed.
We reverse the trial court’s denial of defendant’s motion to suppress. Defendant is entitled to a new trial on the charges of possession of marijuana and drug paraphernalia. The trial court also erred when it included a probation point in sentencing defendant as a prior record level II offender. We find no error in defendant’s conviction of two counts of identity theft and resisting a public officer.
The public safety exception to Miranda does not apply in this case. Defendant was sitting on the ground in handcuffs outside a motel room, and he had already been patted down – which produced only a digital scale. The officers conducted a full search of the motel room and posed further investigatory questions to defendant, including asking him to reveal everything he owned in the motel room, before ultimately reading him his rights. The need for answers to questions did not pose a threat to the public safety, outweighing the need for a rule protecting defendant’s privilege against self-incrimination.
The trial court’s erroneous denial of defendant’s motion to suppress was prejudicial. The state did not present overwhelming evidence, excluding defendant’s statement, which linked him to the marijuana and corresponding drug paraphernalia found in the motel room. Defendant was acquitted of the charges for other drugs to which he did not admit ownership (heroin and methamphetamine), two other people were in the motel room when officers arrived, and a fourth individual rented the motel room. Accordingly, there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.
Even though the identity theft statute, G.S. § 14-113.20(b)(2), describes “identifying information” as a driver’s license number, the state presented evidence that defendant possessed Christopher Messer’s driver’s license, which included the driver’s license number. Moreover, even if failing to include the word “number” after “driver’s license” in the jury instruction was error under G.S. § 14-113.20(b)(2), the driver’s license constitutes “any other … information that can be used to access a person’s financial resources” under G.S. § 14-113.20(b)(10).
When sentencing defendant, the trial court did not determine that the state had provided notice of its intent to prove defendant committed the crimes charged while on probation, parole, or post-release supervision. Assuming that the state had included defendant’s prior record level worksheet in discovery, such action does not constitute “written notice of its intent to prove the existence of … a prior record level point under G.S. 15A-1340.14(b)(7).” G.S. § 15A-1340.16(a6). Moreover, no evidence shows defendant waived such notice.
Therefore, the trial court erred by including the probation point in sentencing defendant as a prior record level II offender. This error was prejudicial because the additional point raised defendant’s prior record level from I to II.
Reversed in part, no error in part, sentence vacated and remanded.
