{ "id": 8376425, "name": "STATE OF NORTH CAROLINA v. JERRY DALE SMITH, Defendant", "name_abbreviation": "State v. Smith", "decision_date": "2006-06-20", "docket_number": "No. COA05-1240", "first_page": "134", "last_page": "144", "citations": [ { "type": "official", "cite": "178 N.C. App. 134" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "616 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633458 ], "year": 2005, "pin_cites": [ { "page": "18", "parenthetical": "quoting State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0015-01" ] }, { "cite": "504 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "789", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469174 ], "year": 1998, "pin_cites": [ { "page": "599", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0596-01" ] }, { "cite": "460 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "171" }, { "page": "171" }, { "page": "171" } ], "opinion_index": 0 }, { "cite": "341 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793217 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0019-01" ] }, { "cite": "34 L. Ed. 2d 499", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "pin_cites": [ { "parenthetical": "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 grounds.\"" } ], "opinion_index": 0 }, { "cite": "409 U.S. 1047", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6469257, 6469165, 6469074, 6469331, 6469653, 6469557, 6469433, 6468988, 6469759 ], "year": 1972, "pin_cites": [ { "parenthetical": "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 grounds.\"" } ], "opinion_index": 0, "case_paths": [ "/us/409/1047-04", "/us/409/1047-03", "/us/409/1047-02", "/us/409/1047-05", "/us/409/1047-08", "/us/409/1047-07", "/us/409/1047-06", "/us/409/1047-01", "/us/409/1047-09" ] }, { "cite": "188 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "303", "parenthetical": "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 grounds.\"" }, { "page": "303" } ], "opinion_index": 0 }, { "cite": "281 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574551 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "208", "parenthetical": "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 grounds.\"" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0198-01" ] }, { "cite": "343 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "316 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703691 ], "year": 1986, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0387-01" ] }, { "cite": "467 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "17", "parenthetical": "quoting State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795977 ], "year": 1996, "pin_cites": [ { "page": "531", "parenthetical": "quoting State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0523-01" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "year": 2002, "pin_cites": [ { "page": "540-41" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] }, { "cite": "550 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "354 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138382 ], "year": 2001, "pin_cites": [ { "page": "33-34" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0028-01" ] }, { "cite": "172 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319854 ], "year": 2005, "pin_cites": [ { "page": "311", "parenthetical": "quoting State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0308-01" ] }, { "cite": "557 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "193-94" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364175 ], "year": 2001, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0135-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "17 L. Ed. 2d 121", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "385 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11388630, 11388679 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0890-01", "/us/385/0890-02" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 5, "year": 1966, "pin_cites": [ { "page": "723" }, { "page": "478" }, { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "134 L. Ed. 2d 794", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "517 U.S. 1197", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11825312, 11825025, 11825060, 11824901, 11825095, 11825259, 11824846, 11824943, 11825136, 11824784, 11824979, 11825363, 11824728, 11825210 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/517/1197-13", "/us/517/1197-07", "/us/517/1197-08", "/us/517/1197-04", "/us/517/1197-09", "/us/517/1197-12", "/us/517/1197-03", "/us/517/1197-05", "/us/517/1197-10", "/us/517/1197-02", "/us/517/1197-06", "/us/517/1197-14", "/us/517/1197-01", "/us/517/1197-11" ] }, { "cite": "463 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "750" }, { "page": "750" } ], "opinion_index": 0 }, { "cite": "342 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796135 ], "year": 1995, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0001-01" ] }, { "cite": "446 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182222 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "301" }, { "page": "308" }, { "page": "300-01" }, { "page": "307-08", "parenthetical": "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" }, { "page": "301" }, { "page": "308" }, { "page": "300" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/us/446/0291-01" ] }, { "cite": "473 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "5-6" } ], "opinion_index": 0 }, { "cite": "344 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867543 ], "year": 1996, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0190-01" ] }, { "cite": "573 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "685", "parenthetical": "citing State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5-6 (1996)" }, { "page": "686", "parenthetical": "holding that the defendant waived his assignment 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[.]\"" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249125 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "123", "parenthetical": "citing State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5-6 (1996)" }, { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0120-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-140", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "567 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "139" }, { "page": "140", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "356 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511311 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0141-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "746", "parenthetical": "citation omitted" }, { "page": "746", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "412", "parenthetical": "citation omitted" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] } ], "analysis": { "cardinality": 970, "char_count": 22171, "ocr_confidence": 0.766, "pagerank": { "raw": 7.441559712829115e-08, "percentile": 0.4440424905081339 }, "sha256": "e44efe421f026615ce463172511ebb335892b176790f64e5d79a9c3bef7c761f", "simhash": "1:8a0a157e57fe0dd6", "word_count": 3639 }, "last_updated": "2023-07-14T17:18:34.747306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY DALE SMITH, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nFleeing to elude arrest constitutes a felony if the State establishes at least two of the statutory aggravating factors under section 20-141.5(b) of the North Carolina General Statutes. Here, 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 section 20-141.5(b) aggravating factors of driving more than fifteen miles per hour over the speed limit and reckless driving, we affirm Defendant\u2019s conviction.\nThe facts tend to show that in June 2004 while patrolling in Buncombe County, Officer William Cummings received information that \u201ca subject wanted on [two felony] warrants\u201d was possibly in the area, and that he was \u201coperating ... a powder blue Nissan or Datsun 280-Z[.]\u201d Upon seeing a powder blue Datsun 280-Z \u201cpassing cars on the double yellow line\u201d about an hour later, Officer Cummings \u201cturned on the overhead lights\u201d to his squad car and pursued the vehicle.\nThe vehicle passed through a construction zone nearly striking a gasoline truck, rounded a curve in the road and stopped. Thereafter, \u201ca white male, average weight, [average height] . . . dressed in all black or all dark clothing\u201d with \u201cdark hair\u201d exited the vehicle, ran across the road, jumped over an approximate ten-foot wall and disappeared into the woods.\nOfficer 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 \u201climited places [for the suspect] to come out.\u201d\nUpon receiving a call that \u201c[the subject] had been picked up by his wife in a green jeep with a black rag top on it\u201d, Officer Cummings spotted the vehicle and initiated a felony traffic stop. The female driver who identified herself as \u201cMiss Lovelace,\u201d drove a vehicle registered to the same address as the blue Datsun. The passenger in the vehicle, Defendant Jerry Dale Smith, was dressed \u201cin dark clothing, completely soaked from head to toe,\u201d and \u201chad trouble walking.\u201d Officer Cummings asked Defendant if he needed an ambulance to which he responded that \u201che possibly hurt [his ankle] when he jumped over the wall,\u201d but that \u201che\u2019d be fine\u201d without an ambulance. Officer Cummings then took him into custody and placed him in the back of the patrol car.\nOfficer Cummings testified that during the ride to the Buncombe County Detention Center, he \u201cclosed the shield on the cage\u201d 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 explained:\nAs 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\u2019t have happened.\nDefendant 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.\nI:\n\u201cWhen a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine \u2018whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u2019 \u201d 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 \u201csubstantial evidence\u201d as \u201crelevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.\u201d Garcia, 358 N.C. at 412, 597 S.E.2d at 746 (citations omitted).\nAdditionally, \u201c \u2018[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 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.\u2019 \u201d 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)).\nHere, 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:\n(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.\n(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.\n(1) Speeding in excess of 15 miles per hour over the legal speed limit. . . .\n(3) Reckless driving as proscribed by G.S. 20-140.\nN.C. Gen. Stat. \u00a7 20-141.5(a)-(b) (2005).\nDefendant 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 \u201cat least in excess of sixty [miles per hour]\u201d 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)(l) of the North Carolina General Statutes.\nAs to the second aggravating factor of reckless driving, section 20-140 of the North Carolina General Statutes defines \u201creckless driving\u201d as (a) driving \u201ccarelessly and heedlessly in willful or wanton disregard of the rights or safety of others\u201d; or (b) driving \u201cwithout due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.\u201d N.C. Gen. Stat. \u00a7 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\u2019s car. This evidence was sufficient to show that Defendant\u2019s actions satisfied the definition of \u201creckless driving\u201d under section 20-140 which is referenced by section 20-141.5(b) of the North Carolina General Statutes.\nIn sum, the State presented sufficient evidence to withstand Defendant\u2019s motion to dismiss the felonious fleeing to elude arrest charge.\nII.\nThe record shows Defendant failed to preserve for appellate review the issue of whether his confession should have been suppressed. To preserve a question for appellate review, North Carolina Rule of Appellate Procedure 10(b)(1) requires a party to state the \u201cspecific grounds\u201d for the desired ruling. N.C. R. App. P. 10(b)(1). \u201cOur 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 \u2018swap horses between courts in order to get a better mount\u2019 in the appellate courts.\u201d 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 (1996)).\nAt trial in this case, Defendant specifically moved to suppress his confession on due process grounds:\nCourt: And you move to suppress the statement because of what grounds?\nMr. Olesiuk: Due process, your Honor.\nAt 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 confession:\nCourt: [Y]ou said due process. Are you contesting it on the vol-untariness of the statement?\nMr. Olesiuk: I am more with regard to the criminal procedure, sharing of Discovery and such as that. Due process, the timeliness of the information.\nThus, for the first time on appeal, Defendant asserts that the trial court erred in denying his motion to suppress under Miranda. As Defendant impermissibly presente 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 his assignment of error on appeal where he argued at trial that evidence should have been suppressed on the grounds that it was \u201ccoerced,\u201d but then argued on appeal that the statement should have been suppressed for \u201clack of probable cause[.]\u201d). Nonetheless, even if this issue was properly before this Court, we would uphold the trial court\u2019s admission of his confession under Miranda.\nFor Miranda purposes, the United States Supreme Court defines \u201cinterrogation\u201d as \u201c[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect[.]\u201d Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980). Moreover, \u201cinterrogation\u201d for Miranda purposes does not include \u201cwords or actions . . . normally attendant to arrest and custody,\u201d and must consist of \u201ca measure of compulsion above and beyond that inherent in custody itself.\u201d 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\u2019s crime in his presence, because the defendant was not subjected to the \u201cfunctional equivalent\u201d of interrogation under such circumstances).\nOur 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):\nMiranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, reh\u2019g 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. \u2018At 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.\u2019 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 \u2018[volunteered statements of any kind are not barred by the Fifth Amendment.\u2019 Id. at 478, 16 L. Ed. 2d at 726. The Court has defined \u2018interrogation\u2019 as \u2018[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect.\u2019 Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980).\nId. at 28, 463 S.E.2d at 750.\nAfter considering the evidence introduced in the suppression hearing, the trial court made the following findings of fact:\nThe 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 contact.\nThis Court\u2019s review of the denial of a motion to suppress is limited to determining whether the trial court\u2019s 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 the conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). If the trial court\u2019s 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).\nAfter careful review of the record on appeal, we conclude the trial court properly denied Defendant\u2019s 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:\nMr. Hess: And, did you ask [Defendant] any questions?\nOfficer Cummings: No, I never asked him anything other than his name.\nOfficer 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\u2019s 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.\nNonetheless, Defendant argues on appeal that because he was in custody when he confessed, his confession is equivalent to the coercion inherent in \u201cinterrogation\u201d for which Miranda warnings are required. However, the United States Supreme Court explicitly rejected this argument in Innis, explaining that Miranda protection is only triggered by \u201ca measure of compulsion above and beyond that inherent in custody itself.\u201d Innis, 446 U.S. at 300, 64 L. Ed. 2d at 307. As. the Innis Court held that a defendant\u2019s voluntary confession made in custody while riding in a police car where the officers were suggestively discussing the defendant\u2019s crime was not \u201cinterrogation\u201d, Defendant\u2019s argument in this case, that he was subjected to any \u201cinterrogation\u201d for Miranda purposes, is without merit.\nIII.\nDefendant further argues that the trial court erred by denying his motion for a continuance. The standard of review for a trial court\u2019s ruling on a motion for a continuance\nis addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court\u2019s ruling is not subject to review. When a motion to continue raises a constitutional issue, the trial court\u2019s 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.\nState 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,\nto establish that the denial of a continuance motion was prejudicial, \u2018a 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.\u2019\nId. (quoting State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632 (2002)). Thus, \u201ca motion for a continuance should be supported by an affidavit showing sufficient grounds for the continuance.\u201d 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 \u201c[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 grounds.\u201d).\nAnalogous 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 \u201cwould be important for the defense,\u201d and that he \u201chad spent the weekend trying to locate the witnesses but had not had the opportunity to interview anyone.\u201d Id. Our Supreme Court held that the trial court properly denied the defendant\u2019s motion to continue, explaining that \u201cdefendant\u2019s oral motion to continue was not \u2018supported by an affidavit showing sufficient grounds,\u2019 \u201d and that \u201cthe need to question these witnesses was not \u2018fully established.\u2019 \u201d Id. at 33, 460 S.E.2d at 171 (quoting Cradle, 281 N.C. at 208, 188 S.E.2d at 303). The Court rejected the defendant\u2019s 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.\nHere, the prosecutor notified defense counsel regarding Defendant\u2019s confession on the Friday afternoon before the trial was scheduled to begin. Defendant moved for a continuance at trial, offering the following explanation:\nMr. Olesiuk: I\u2019ll 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.\nDefendant failed to provide an affidavit illustrating sufficient grounds for the continuance along with his motion citing any reasons for a continuance beyond his counsel\u2019s general statement that he needed time to \u201cprocess this information.\u201d Specifically, Defendant failed to show how the additional timewould have helped him to better prepare had the continuance bien granted. 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. McCullers, 341 N.C. at 33, 460 S.E.2d at 171.\nMoreover, 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 \u201coverwhelming evidence of [a defendant\u2019s] guilt,\u201d a court must reject the defendant\u2019s challenge for failure to satisfy the prejudice requirement). Unlike the alibi witnesses that could have potentially exonerated the defendant in McCullers, Defendant\u2019s 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. In addition, the jury heard Defendant\u2019s statement to Officer Cummings (to which Defendant does not object) that he hurt his foot when he \u201cjumped over the wall.\u201d It follows that the overwhelming evidence of Defendant\u2019s guilt negates any inference that he suffered material prejudice as a result of the denial of the motion to continue.\nNo error.\nJudges GEER and STEPHENS concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State.", "Mercedes O. Chut, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY DALE SMITH, Defendant\nNo. COA05-1240\n(Filed 20 June 2006)\n1. Criminal Law\u2014 felony fleeing to elude arrest \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 aggravating factors\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of felony fleeing to elude arrest under N.C.G.S. \u00a7 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. \u00a7 20-141.5(b); and (2) an officer provided sufficient testimony to show that defendant\u2019s 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.\n2. Confessions and Incriminating Statements\u2014 motion to suppress \u2014 interrogation\u2014custody\nThe trial court did not err in a felony fleeing to elude arrest case by denying defendant\u2019s 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.\n3. Criminal Law\u2014 motion for continuance \u2014 failure to provide affidavit\nThe trial court did not abuse its discretion in a felony fleeing to elude arrest case by denying defendant\u2019s motion for a continuance, because: (1) defendant failed to provide with his motion an affidavit citing any reasons for . a continuance beyond defense counsel\u2019s 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.\nAppeal by Defendant from judgment entered 26 April 2005 by Judge James U. Downs in Superior Court, Buncombe County. Heard in the Court of Appeals 16 May 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for the State.\nMercedes O. Chut, for defendant-appellant." }, "file_name": "0134-01", "first_page_order": 166, "last_page_order": 176 }