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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA, v. JERRY DALE SMITH, Defendant
Filed: 20 June 2006
1. Criminal Law--felony fleeing to elude arrest_-motion to dismiss--sufficiency of
The trial court did not err by denying defendant's motion to dismiss the charge of felony
fleeing to elude arrest under N.C.G.S. § 20-141.5(b), because: (1) an officer testified that
defendant sped at least in excess of sixty miles per hour in speed-zone areas of thirty-five and
forty-five miles per hour, thus providing sufficient evidence that defendant drove more than
fifteen miles per hour over the speed limit as required for a charge under N.C.G.S. § 20-141.5(b);
and (2) an officer provided sufficient testimony to show that defendant's actions satisfied the
definition of reckless driving including that it was a rainy day, defendant was involved in a high-
speed chase and came close to hitting an oil tanker at speeds in excess of sixty miles per hour,
and defendant crossed double yellow lines.
2. Confessions and Incriminating Statements--motion to suppress--interrogation--
The trial court did not err in a felony fleeing to elude arrest case by denying defendant's
motion to suppress his confession, because: (1) defendant failed to preserve the issue for
appellate review by impermissibly presenting a different theory on appeal than argued at trial; (2)
even if the issue were properly preserved, undisputed evidence in the record established that
defendant initiated the confession and his confession was not made in response to any
questioning by an officer; and (3) although defendant was in custody when he confessed,
Miranda protection is only triggered by a measure of compulsion above and beyond that inherent
in custody itself.
3. Criminal Law--motion for continuance-_failure to provide affidavit
The trial court did not abuse its discretion in a felony fleeing to elude arrest case by
denying defendant's motion for a continuance, because: (1) defendant failed to provide with his
motion an affidavit citing any reasons for a continuance beyond defense counsel's general
statement that he needed time to process the information; (2) defendant failed to show how the
additional time would have helped him to better prepare had the continuance been granted; (3)
attempts to suggest reasons supporting the motion in a brief on appeal are insufficient to
overcome the failure to provide these reasons to the trial court in an affidavit or otherwise; and
(4) defendant failed to demonstrate that he was materially prejudiced as a result of the denial of
his motion to continue, and the overwhelming evidence of his guilt negates any inference that he
suffered material prejudice.
Appeal by Defendant from judgment entered 26 April 2005 by
Judge James U. Downs in Superior Court,
County. Heard in
the Court of Appeals 16 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly D. Potter, for the State.
Mercedes O. Chut, for defendant-appellant.
Fleeing to elude arrest constitutes a felony if the State
establishes at least two of the statutory aggravating factors
section 20-141.5(b) of the North Carolina General Statutes
Defendant contends the State failed to present sufficient evidence
to support his conviction for felony fleeing to elude arrest.
Because the evidence supported finding the
aggravating factors of driving
more than fifteen miles per hour
over the speed limit and reckless driving, we affirm Defendant's
The facts tend to show that in June 2004 while patrolling in
Buncombe County, Officer William Cummings received information that
a subject wanted on [two felony] warrants was possibly in the
area, and that he was operating . . . a powder blue Nissan or
Datsun 280-Z[.] Upon seeing a powder blue Datsun 280-Z passing
cars on the double yellow line about an hour later, Officer
Cummings turned on the overhead lights to his squad car andpursued the vehicle.
The vehicle passed through a construction zone nearly striking
a gasoline truck, rounded a curve in the road and stopped.
Thereafter, a white male, average weight, [average height] . . .
dressed in all black or all dark clothing with dark hair exited
the vehicle, ran across the road, jumped over an approximate ten-
foot wall and disappeared into the woods.
Officer Cummings determined that the blue Datsun from which
the suspect fled was registered to Brenda Darlene Lovelace in
Canton, North Carolina. He summoned other officers to form a
perimeter around the area, since there were limited places [for
the suspect] to come out.
Upon receiving a call that [the subject] had been picked up
by his wife in a green jeep with a black rag top on it, Officer
Cummings spotted the vehicle and initiated a felony traffic stop.
The female driver who identified herself as Miss Lovelace, drove
a vehicle registered to the same address as the blue Datsun. The
passenger in the vehicle, Defendant Jerry Dale Smith, was dressed
in dark clothing, completely soaked from head to toe, and had
trouble walking. Officer Cummings asked Defendant if he needed an
ambulance to which he responded that he possibly hurt [his ankle]
when he jumped over the wall, but that he'd be fine without an
ambulance. Officer Cummings then took him into custody and placedhim in the back of the patrol car.
Officer Cummings testified that during the ride to the
Buncombe County Detention Center, he closed the shield on the
cage between Defendant and himself and took care not to speak with
Defendant. But Defendant initiated conversation with Officer
Cummings and essentially confessed to the crime. Officer Cummings
As he was riding in the back seat he stated
several times that he was sorry, that he was
scared, that he knew he was wanted, that he
figured that when we passed him that we were
looking for him. I told him he about hit the
tanker truck. He stated he was a good driver,
that wouldn't have happened.
Defendant was charged and later found guilty of felonious
operation of a vehicle to elude arrest and being an habitual felon.
The trial court sentenced Defendant to a term of 133 to 169 months
imprisonment. Defendant appeals contending the trial court erred
by denying his motions to (I) dismiss the charge of felonious
operation of a vehicle to elude arrest, (II) suppress his
confession, and (III) continue his trial.
 When a defendant moves to dismiss a charge against him on
the ground of insufficiency of the evidence, the trial court must
determine 'whether there is substantial evidence of each essential
element of the offense charged and of the defendant being theperpetrator of the offense.' State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (citation omitted); see also State v.
Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004); State v.
Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002). Our Supreme
Court has defined substantial evidence as relevant evidence that
a reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion. Garcia, 358 N.C. at
412, 597 S.E.2d at 746 (citations omitted).
Additionally, '[i]f there is substantial evidence--whether
direct, circumstantial, or both--to support a finding that the
offense charged has been committed and that the defendant committed
it, the case is for the jury and the motion to dismiss should be
denied.' Butler, 356 N.C. at 145, 567 S.E.2d at 140 (alteration
in original) (quoting State v. Locklear, 322 N.C. 349, 358, 368
S.E.2d 377, 383 (1988)).
Here, Defendant was convicted of fleeing to elude arrest under
section 20-141.5(b) of the North Carolina General Statutes which
provides, in pertinent part:
(a) It shall be unlawful for any person to
operate a motor vehicle on a street, highway,
or public vehicular area while fleeing or
attempting to elude a law enforcement officer
who is in the lawful performance of his
duties. Except as provided in subsection (b)
of this section, violation of this section
shall be a Class 1 misdemeanor.
(b) If two or more of the following
aggravating factors are present at the time
the violation occurs, violation of this
section shall be a Class H felony.
(1) Speeding in excess of 15 miles per hour
over the legal speed limit.
. . .
(3) Reckless driving as proscribed by G.S. 20-
N.C. Gen. Stat. . 20-141.5(a)-(b) (2005).
Defendant contends the State failed to present sufficient
evidence to support the aggravating factors necessary to support a
conviction for felony fleeing to elude arrest. However, a review
of the record reveals that Officer Cummings testified that
Defendant sped at least in excess of sixty [miles per hour] in
speed-zone areas of thirty-five and forty-five miles per hour.
This evidence supports finding that Defendant drove more than
fifteen miles per hour over the speed limit as required for a
charge under section 20-141.5(b)(1) of the North Carolina General
As to the second aggravating factor of reckless driving,
section 20-140 of the North Carolina General Statutes defines
reckless driving as (a) driving carelessly and heedlessly in
willful or wanton disregard of the rights or safety of others; or
(b) driving without due caution and circumspection and at a speed
or in a manner so as to endanger or be likely to endanger anyperson or property. N.C. Gen. Stat. . 20-140(a)-(b) (2005). The
record reveals that Officer Cummings testified that it was rainy
that day and that during the high-speed chase, Defendant came
extremely close to hitting an oil tanker at speeds in excess of
sixty miles per hour. Officer Cummings further testified that he
observed Defendant crossing double yellow lines shortly after he
passed Defendant's car. This evidence was sufficient to show that
Defendant's actions satisfied the definition of reckless driving
under section 20-140
which is referenced by section 20-141.5(b) of
the North Carolina General Statutes.
In sum, the State presented sufficient evidence to withstand
Defendant's motion to dismiss the felonious fleeing to elude arrest
 The record shows Defendant failed to preserve for
appellate review the issue of whether his confession should have
. To preserve a question for appellate review,
North Carolina Rule of Appellate Procedure 10(b)(1) requires a
party to state the specific grounds for the desired ruling. N.C.
R. App. P. 10(b)(1). Our Supreme Court has long held that where
a theory argued on appeal was not raised before the trial court,
the law does not permit parties to 'swap horses between courts in
order to get a better mount' in the appellate courts. State v.Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002)
(citing State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5-6
At trial in this case, Defendant specifically moved to
suppress his confession on due process grounds:
COURT: And you move to suppress the statement
because of what grounds?
MR. OLESIUK: Due process, your Honor.
At the end of the hearing, the trial court gave defense counsel an
opportunity to clarify the grounds for the motion to suppress, and
even specifically asked defense counsel whether Defendant was
moving to suppress on grounds related to the voluntariness of his
COURT: [Y]ou said due process. Are you
contesting it on the voluntariness of the
MR. OLESIUK: I am more with regard to the
criminal procedure, sharing of Discovery and
such as that. Due process, the timeliness of
Thus, for the first time on appeal, Defendant asserts that the
trial court erred in denying his motion to suppress under Miranda.
As Defendant impermissibly presents a different theory on appeal
than argued at trial, this assignment of error was not properly
preserved for appellate review. See Holliman, 155 N.C. App. 120 at
124, 573 S.E.2d at 686 (holding that the defendant waived hisassignment of error on appeal where he argued at trial that
evidence should have been suppressed on the grounds that it was
coerced, but then argued on appeal that the statement should have
been suppressed for lack of probable cause[.]). Nonetheless,
even if this issue was properly before this Court, we would uphold
the trial court's admission of his confession under Miranda.
For Miranda purposes, t
he United States Supreme Court defines
interrogation as [a] practice that the police should know is
reasonably likely to evoke an incriminating response from a
suspect[.] Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d
297, 308 (1980). Moreover, interrogation for Miranda purposes
does not include words or actions . . . normally attendant to
arrest and custody, and must consist of a measure of compulsion
above and beyond that inherent in custody itself. Id. at 300-01,
64 L. Ed. 2d at 307-08 (holding that no Miranda warning was
required for admissibility of confession, even where police talked
to each other suggestively about the defendant's crime in his
presence, because the defendant was not subjected to the
functional equivalent of interrogation under such circumstances).
Our Supreme Court analyzed Miranda and its applicability in
State v. Walls, 342 N.C. 1, 28, 463 S.E.2d 738, 750 (1995), cert.
denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996):
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d694, reh'g denied, 385 U.S. 890, 17 L. Ed. 2d
121 (1966), provides that custodial
interrogation must cease when a suspect
indicates he wishes to remain silent. 'At this
point he has shown that he intends to exercise
his Fifth Amendment privilege; any statement
taken after the person invokes his privilege
cannot be other than the product of
compulsion, subtle or otherwise.' Id. at 474,
16 L. Ed. 2d at 723. The Court, however, made
quite clear that the holding in Miranda did
not affect the fact that '[v]olunteered
statements of any kind are not barred by the
Fifth Amendment.' Id. at 478, 16 L. Ed. 2d at
726. The Court has defined 'interrogation' as
'[a] practice that the police should know is
reasonably likely to evoke an incriminating
response from a suspect.' Rhode Island v.
Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297,
Id. at 28, 463 S.E.2d at 750.
After considering the evidence introduced in the suppression
hearing, the trial court made the following findings of fact:
THE COURT: ... the Court concludes that such
statement by the defendant was made without
any questions being asked of him. He was
never given his Miranda rights and no
questions were asked of him. Any statements
he made were initiated by him, volunteered by
him, and that any opportunity for silence was
waived by him in view of his initiating
This Court's review of the denial of a motion to suppress is
limited to determining whether the trial court's findings of fact
are supported by competent evidence, in which case they are binding
on appeal, and whether the findings of fact in turn support theconclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982). If the trial court's conclusions of law are
supported by its factual findings, this Court will not disturb
those conclusions on appeal. State v. Logner, 148 N.C. App. 135,
138, 557 S.E.2d 191, 193-94 (2001).
After careful review of the record on appeal, we conclude the
trial court properly denied Defendant's motion to suppress.
Undisputed evidence in the record establishes that Defendant
initiated the confession and that his confession was not made in
response to any questioning by Officer Cummings:
Mr. Hess: And, did you ask [Defendant] any
Officer Cummings: No, I never asked him
anything other than his name.
Officer Cummings further testified that it was his practice to
never ask questions of suspects until after booking, and that he
closed the shield on the police car's cage after placing Defendant
in the back seat. Defendant did not rebut any of this evidence,
and he did not provide any evidence suggesting that his statement
was involuntary, or that Officer Cummings had questioned him.
Nonetheless, Defendant argues on appeal that because he was in
custody when he confessed, his confession is equivalent to the
coercion inherent in interrogation for which Miranda warnings are
required. However, the United States Supreme Court explicitlyrejected this argument in Innis, explaining that Miranda protection
is only triggered by a measure of compulsion above and beyond that
inherent in custody itself. Innis, 446 U.S. at 300, 64 L. Ed. 2d
at 307. As the Innis Court held that a defendant's voluntary
confession made in custody while riding in a police car where the
officers were suggestively discussing the defendant's crime was not
interrogation, Defendant's argument in this case, that he was
subjected to any interrogation for Miranda purposes, is without
 Defendant further argues that the trial court erred by
denying his motion for a continuance. The standard of review for
a trial court's ruling on a motion for a continuance
is addressed to the discretion of the trial
court, and absent a gross abuse of that
discretion, the trial court's ruling is not
subject to review. When a motion to continue
raises a constitutional issue, the trial
court's ruling is fully reviewable upon
appeal. Even if the motion raises a
constitutional issue, a denial of a motion to
continue is grounds for a new trial only when
defendant shows both that the denial was
erroneous and that he suffered prejudice as a
result of the error.
State v. Jones
, 172 N.C. App. 308, 311, 616 S.E.2d 15, 18 (2005)
(quoting State v. Taylor
, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146
(2001)). Moreover, to establish that the denial of a continuance
motion was prejudicial, 'a defendant must show
that he did not have ample time to confer with
counsel and to investigate, prepare and
present his defense. To demonstrate that the
time allowed was inadequate, the defendant
must show how his case would have been better
prepared had the continuance been granted or
that he was materially prejudiced by the
denial of his motion.'
(quoting State v. Williams
, 355 N.C. 501, 540-41, 565 S.E.2d
609, 632 (2002)). Thus, a motion for a continuance should be
supported by an affidavit showing sufficient grounds for the
continuance. State v. Jones
, 342 N.C. 523, 531, 467 S.E.2d 12, 17
(1996) (quoting State v. Kuplen
, 316 N.C. 387, 403, 343 S.E.2d 793,
802 (1986)); see also State v. Cradle
, 281 N.C. 198, 208, 188
S.E.2d 296, 303, cert. denied
, 409 U.S. 1047, 34 L. Ed. 2d 499
(1972) (explaining [c]ontinuances should not be granted unless the
reasons therefor are fully established. Hence, a motion for a
continuance should be supported by an affidavit showing sufficient
Analogous to this case, in State v. McCullers
, 341 N.C. 19,
460 S.E.2d 163 (1995),
a murder defendant moved to continue after
the State provided the defendant with a list of six potential alibi
witnesses on the Friday afternoon before the Monday on which the
trial was scheduled. Id.
at 32, 460 S.E.2d at 171. The defendant
in that case argued that the witnesses would be important for thedefense, and that he had spent the weekend trying to locate the
witnesses but had not had the opportunity to interview anyone.
Our Supreme Court held that the trial court properly denied
the defendant's motion to continue, explaining that defendant's
oral motion to continue was not 'supported by an affidavit showing
sufficient grounds,' and that the need to question these
witnesses was not 'fully established.' Id.
at 33, 460 S.E.2d at
, 281 N.C. at 208, 188 S.E.2d at 303). The
Court rejected the defendant's argument that his brief on appeal
set forth sufficient reasons for a continuance, finding instead
that these reasons should have been presented to the trial court at
the time of the motion. Id
, the prosecutor notified defense counsel regarding
Defendant's confession on the Friday afternoon before the trial was
scheduled to begin. Defendant moved for a continuance at trial,
offering the following explanation:
MR. OLESIUK: I'll ask for a motion to
continue, your Honor, simply to be able to
completely process the new information and to
be better able to advise my client.
Defendant failed to provide an affidavit illustrating
sufficient grounds for the continuance along with his motion citing
any reasons for a continuance beyond his counsel's general
statement that he needed time to process this information. Specifically, Defendant failed to show how the additional time
would have helped him to better prepare had the continuance been
While Defendant attempts to suggests reasons supporting
the motion in his brief on appeal, as in McCullers
, this attempt is
insufficient to overcome his failure to provide these reasons to
the trial court in an affidavit or otherwise.
at 33, 460 S.E.2d at 171.
Moreover, Defendant has failed to demonstrate that he was
materially prejudiced as a result of the denial of his motion to
continue. See State v. Ellis
, 130 N.C. App. 596, 599, 504 S.E.2d
787, 789 (1998) (where there is overwhelming evidence of [a
defendant's] guilt, a court must reject the defendant's challenge
for failure to satisfy the prejudice requirement).
alibi witnesses that could have potentially exonerated the
defendant in McCullers,
Defendant's incriminating statements in
this case merely added to the overwhelming evidence of his guilt.
The jury was presented with evidence of multiple matching
identifications of Defendant as the correct suspect, which were
based both on his physical description as well as his address
matching that to which the blue Datsun was registered.
addition, the jury heard Defendant's statement to Officer Cummings
(to which Defendant does not object) that he hurt his foot when he
jumped over the wall.
It follows that the overwhelming evidenceof Defendant's guilt negates any inference that he suffered
material prejudice as a result of the denial of the motion to
Judges GEER and STEPHENS concur.
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