An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA02-989


Filed: 1 July 2003


v .                         Rockingham County
                            No. 02 CRS 111, 112

    Appeal by defendant from judgment entered 29 May 2002 by Judge Melzer A. Morgan, III in Superior Court, Rockingham County. Heard in the Court of Appeals 3 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General George W. Boylan, for the State.

    John T. Hall for the defendant-appellant.

    WYNN, Judge.

    Following her conviction on charges of embezzlement of a controlled substance by a practitioner, defendant, Donna Bailey Miller, argues on appeal that the trial court erroneously denied her motion to suppress because she detrimentally relied upon an unkept promise by the police in making the inculpatory statement. We summarily affirm the trial court's decision.
    On appeal, defendant contends that upon being suspected of stealing a narcotic commonly referred to as Demoral at Morehead Memorial Hospital where she was employed as a Licensed Practical Nurse, Lieutenant Greg Moore of the Eden Police Department went to her home and asked if she knew why he was there; she indicated she did. Thereafter, she contends in her brief that,    the police promised defendant that she would not be prosecuted for embezzling the controlled substance . . . [Demerol] if defendant admitted her addiction to Demerol, sought medical help for her condition and gave information relevant to her involvement in the embezzlement. Based on this offer, defendant provided police with self-incriminating statements pertinent to the embezzlement.

    “It is inescapable that broken promises made to a defendant by the police, if relied on to the constitutional detriment of that defendant, mandate relief by our courts.” State v. Sturgill, 121 N.C. App. 629, 639, 469 S.E.2d 557, 563 (1996). In Sturgill, the detective made a promise not to prosecute the defendant as a habitual felon in exchange for his cooperation on an investigation of five break-ins. This promise was made during custodial interrogation in a police station after the police had given the defendant the Miranda warning. After hearing the promise, the defendant confessed to his involvement in the break-ins; however, the prosecutor did not honor the promise and indicted defendant as a habitual felon. This Court in Sturgill found the police's behavior unconstitutional and ordered a new trial without the benefit of the defendant's confession.
    In this case, during cross-examination, defendant testified that Lieutenant Moore “never promised that [she] would never be arrested”; rather, she “thought” she would not be arrested, but instead would be treated as an addict.
    Thus, unlike Sturgill, defendant's own testimony establishes that the lieutenant did not make a promise not to prosecute her in this case. Moreover, as a condition of her suspended sentence, defendant was ordered to report for an evaluation by the RockinghamCounty Mental Aftercare Program and to participate in any further evaluation, counseling, treatment or education programs required and to comply with all other therapeutic requirements of those programs. Accordingly, we hold the trial court properly denied the defendant's motion to suppress.
    The defendant also contends that in denying her motion to suppress, the trial court erroneously failed to make adequate findings under the criteria of N.C. Gen. Stat. § 15A- 974(2)(2001).   (See footnote 1)  However, “[w]hen there is no material conflict in the evidence presented at a motion to suppress evidence [hearing], the trial judge may admit the challenged evidence without specific findings of fact, although findings of fact are preferred. In that event, the necessary findings are implied from the admission of the challenged evidence.” State v. Norman, 100 N.C. App. 660, 663, 397 S.E.2d 647, 649 (1990).
    In this case, there was no material conflict in the evidence presented at the suppression hearing. After denying defendant's motion to suppress in open court, defense counsel asked the court whether it was going to make specific findings of fact about Lieutenant Moore's testimony because “there were certain thingsthat were uncontroverted.” Thereafter, the trial court rendered findings of fact on that specifically requested issue by stating:
        With regard to that, the Court will find that both sides appeared to be in agreement that on June 7th of 2001 when Detective Moore went to Ms. Miller's residence to interview her that he told her there were two ways that Detective Moore, the hospital, and the courts could look at her. One way was a person who was addicted, and the other way she could be looked at was a thief who was stealing drugs for use or sale, and that he told her if she believed she had the necessary problem, that she needed to address it; and she acknowledged, saying that she did have a problem.

Furthermore, our analysis of the record also indicates that there was no material conflict in the evidence presented at the suppression hearing. Indeed, defendant testified the lieutenant did not promise not to arrest her for her crimes; and, as previously addressed in this opinion, this Court has determined the police did not make a non-prosecution promise and complied with any promises made to defendant.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
        N.C. Gen. Stat. § 15A-974(2) states: “Upon timely motion, evidence must be suppressed if: ... (2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including: a. The importance of the particular interest violated;         b. The extent of the deviation from lawful conduct; c. The extent to which the violation was willful; d. The extent to which the exclusion will tend to deter future violations of this Chapter.”

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