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State v. Whitley5/3/2005
September 2000 (the erroneous date) and the 6 January 2000 (the correct date) were within that seven-year window, the amendment of the subject indictment to change dates was not error. See Price, 310 N.C. at 599, 313 S.E.2d at 559 (providing that amendment was not necessary but the court's decision to allow the correction of an erroneous date was proper). Accordingly, defendant's second assignment of error is also overruled.
By his third assignment of error, defendant argues that the trial court erred in allowing Trooper Marshall to testify, over his objection, regarding certain statements defendant made prior to being advised of his Miranda rights. We note, however, that this issue was authoritatively addressed, contrary to defendant's position, by this Court in State v. Seagle, 96 N.C. App. 318, 320-23, 385 S.E.2d 532, 534-35 (1989).
In Seagle, the Court noted that incriminating statements made by a defendant to a trooper during a brief traffic stop were admissible. The Court explained, by way of several analogous cases, that the questions asked by a trooper, after observing the defendant commit a moving violation and pulling the defendant overon the roadside, were non-custodial in nature and did not require Miranda warnings.
The facts of this case are much like those discussed in Seagle, its predecessors and progeny. Here, defendant was pulled over by Trooper Marshall after he was "clocked" going some 24 miles over the speed limit. After stopping the vehicle, the trooper noticed that a person other than defendant was in the driver's seat. When the passenger admitted to having switched places with defendant at defendant's request, the trooper then approached defendant. Defendant had the odor of alcohol about his person, had difficulty exiting the passenger side of his pickup truck and was unsteady as he walked back to Trooper Marshall's police cruiser. Once in the front seat of the trooper's cruiser, the trooper questioned defendant about how much he had to drink. Defendant told Trooper Marshall that he "had a beer in the truck." The trooper then asked defendant why he and his passenger had switched places, whereupon defendant denied having been driving. Defendant also refused to take an ALCO-SENSOR test.
As did the Court in Seagle, we conclude here that "a reasonable man" in defendant's position would not have felt like he was in custody. Defendant was never handcuffed and was not placed under arrest until after he refused to take the ALCO-SENSOR test. Moreover, the trooper was alone during the traffic stop and never showed a weapon nor employed any force to restrain defendant during questioning. In fact, both vehicles were parked on a roadside in public view during the entire exchange. Accordingly, thestatements made to Trooper Marshall were admissible as non-custodial statements, not requiring Miranda warnings. Defendant's arguments to the contrary fail, and hence, this assignment of error is overruled.
Defendant specifically abandons his fourth assignment of error. Having overruled all of defendant's assignments of error brought forward on appeal, we hold that defendant received a fair trial, free from prejudicial error.
No error.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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