Evidence ruling needs explaining, appeals court says

Feb. 18, 2014 @ 06:36 PM

A N.C. Court of Appeals panel wants a Durham judge to revamp an evidence-suppression decision that helped convict one of four alleged participants in a 2010 home break-in.

The panel ruled Tuesday that Senior Resident Superior Court Judge Orlando Hudson hadn’t explained his reasoning in the case clearly enough to allow them to say whether a Durham County Sheriff’s Office deputy had violated the suspect’s rights.

But its opinion, authored by Judge Robert N. Hunter Jr., offered some coaching tips that would allow Hudson or any other trial judge who handles the case to quickly remedy the problem.

Hunter, joined by fellow Judges Donna Stroud and Chris Dillon, was responding to an appeal from Devine Drakkar Thorpe, who pleaded guilty in 2011 to felony charges of conspiracy and breaking and entering. He was put on probation.

Thorpe’s case began when a resident of south Durham’s Lake Park neighborhood shot three men who’d broken into his house.

Sheriff’s deputies apprehended one wounded man at the scene. The others fled. But another deputy, T.J. Mellown, went to Duke Hospital on a hunch the missing suspects might go there for treatment.

His move paid off when a white Dodge Charger pulled up to the emergency room. In it were Thorpe, Omari Mitchell and Gary Brady Jr. Mitchell had been shot in the abdomen; Brady had an arm wound.

Mellown detained and questioned Thorpe and Brady, later saying they initially were “very emotionally charged up” and not particularly cooperative.

The deputy turned Brady over to the hospital staff for treatment, but kept Thorpe handcuffed in his patrol car. He didn’t read Thorpe his Miranda rights or place him under arrest.

Thorpe initially claimed he’d been at a house on Rowena Avenue in east Durham when he got a call saying his cousin – Mitchell, by later accounts – had been shot. He said he drove to the scene to pick up the cousin and take him to the hospital.

Mellown doubted that story, as such a trip was “not feasible given the timing and sequence of events,” Hunter said.

The Rowena Avenue house is a 17-minute drive away from Lake Park and Duke Hospital is another 19 minutes from Lake Park.

The deputy left Thorpe with hospital security for a couple of hours. He also spoke with Brady, who told him “they” had been driving around, broke into a house and been shot.

Once arrested, Thorpe waived his right to silence and, changing his story, said he’d dropped men off “at a small house … tucked back in the woods” near south Durham’s Parkwood neighborhood.

He claimed to have driven around for a few minutes before getting a cell-phone call asking him to pick up his cousin, who had been shot.

Thorpe was quickly indicted.

But his lawyer, Jane Weatherly, filed an evidence-suppression motion. She argued that Mellown had lacked even a “reasonable suspicion to justify a brief investigatory detention, let alone [to] arrest” Thorpe.

She asked Hudson to suppress any evidence Mellown’s questioning of Thorpe had led deputies to. Hudson refused.

On appeal, a new lawyer for Thorpe, Paul Green, argued that Mellown had undermined Thorpe’s right to silence by telling him he wasn’t under arrest, even as he sat handcuffed in the patrol car.

Hunter, Stroud and Dillon rejected that argument, saying the U.S. Supreme Court has long allowed officers to detain people without arresting them based on “reasonable suspicion of criminal activity.”

They also said judges don’t consider the use of handcuffs tantamount to arrest, as they’re “acceptable methods” of dealing with “aggressive, non-cooperative individuals.”

But the length of Thorpe’s detention “may have turned the investigative stop into a de-facto arrest,” Hunter said, adding that Hudson needed to scrutinize the reasons for the delay in making a formal arrest, Hunter said.

Hudson’s ruling didn’t offer any detail on the point, but could have, because a hearing transcript “would support a finding that” Mellown was busy questioning Brady and thus “not unnecessarily delaying” Thorpe’s arrest, Hunter said.

Thorpe, Brady, Mitchell and the fourth man, Timothy Nelson Jr., all pleaded guilty in the case.

The Lake Park case wasn’t the last brush with the law for Brady, Mitchell and Thorpe.

They each were convicted of assault with a deadly weapon with intent to kill inflicting serious injury, going armed to the terror of the public and conspiracy in connection with a July 2012 shooting in east Durham’s Wedgewood neighborhood.

The panel that heard Thorpe’s appeal in the break-in case featured an all-Republican line-up of judges.