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BENJAMIN R.

DAVID State of North Carolina POST OFFICE BOX 352


DISTRICT ATTORNEY General Court of Justice PHONE: (910) 772-6610
Sixth Prosecutorial District FAX: (910) 772-6611

Wilmington, NC 28402

February 11, 2019

To: Members of the Media

Re: Officer-Involved Shooting on January 17, 2019 in Maple Hill

Last month a Pender County Sheriff’s Office detective was involved in a use-of-force incident. As has
been my consistent practice with cases of this nature, I, together with Sheriff Alan Cutler, requested the
assistance of an outside agency to investigate the circumstances surrounding this shooting. I have
reviewed that investigation and have determined that no charges will be filed against the officer. I have
also determined that charges filed against two private citizens involved in this incident will be dismissed.

On the night of January 17, 2019, members of the Sheriff’s Office Vice and Narcotics Unit were
patrolling an area of Maple Hill in response to complaints of drug activity around Webbtown Road. The
unit came upon a disabled, unoccupied vehicle on the roadside; nearby was a second vehicle, a Chevrolet
Tahoe, occupied by two men. Sheriff deputies approached the two men to inquire if they needed
assistance. The “Community Caretaking Doctrine” gives “police officers the flexibility to help citizens in
need or protect the public even if the prerequisite suspicion of criminal activity which would otherwise
be necessary for a constitutional intrusion is nonexistent.” State v. Smathers, 232 N.C. App. 120, 125
(2014). This is consistent with officers’ duty not only to protect the public, but to serve. “The doctrine
recognizes that, in our communities, law enforcement personnel are expected to engage in activities and
interact with citizens in a number of ways beyond the investigation of criminal conduct. Such activities
include a general safety and welfare role for police officers in helping citizens who may be in peril or who
may otherwise be in need of some form of assistance.” Ullom v. Miller, 227 W. Va. 1, 705 S.E.2d 111,
120-23 (W.Va. 2010).

The driver, later identified as Craig T. Pickett, asked if deputies were specifically looking for him. When
Detective Justin Barnes answered that they were not, Pickett walked up a nearby driveway. Meanwhile,
Captain Nazareth Hankins and Detective Michael Wortman approached the passenger side of the Tahoe
and came into contact with a subject later identified as Walter Ray Thompson. Wortman gave Thompson
verbal commands to show his hands, at which point Wortman viewed in Thompson’s hand what
appeared to be a firearm. Hankins also believed that the object in Thompson’s raised hand was a firearm.
Wortman yelled “gun” and fired two shots. He slipped on wet grass as the gun discharged. One bullet hit
the door frame of the Tahoe and the other struck the back passenger window and exited the windshield.
Thompson was not struck.

Wortman, Barnes, and Hankins approached the Tahoe and viewed what they still believed to be a
Glock semi-automatic weapon in Thompson’s lap. Upon securing the object, the officers realized that it
was not a firearm, but a flashlight. Thompson was removed from the vehicle and was detained.
Officer-Involved Shooting on January 17, 2019 in Maple Hill Page 2

Meanwhile, Detective Sergeants Ryan Wilson and Kevin Malpass were standing near the disabled
vehicle in front of the Tahoe. They heard the gunshots and, at that time, were unclear if Pickett, who was
walking up the driveway, had fired the shots. They detained him.

The Pender County Sheriff’s Office immediately began an internal investigation into the incident. I
was also notified that night. The State Bureau of Investigation, which often investigates officer-involved
shootings, does not accept investigations in which no one was injured. As a result, we turned to an out-
of-county law enforcement agency to review the incident. This investigation was completed by Chief
James Crayton of the Wallace Police Department.

Officer Conduct

The law is clear and long-established: The United States Supreme Court, the Fourth Circuit Court of
Appeals, and North Carolina appellate and trial courts have all set forth clear guidance for officers and
prosecutors regarding use of force. Tennessee v. Garner, 471 U.S. 1 (1985); Elliot v. Leavitt, 99 F.3d 640
(1996); State v. Ellis, 241 N.C. 702 (1955). The North Carolina General Assembly has codified this
precedent in our statutes. N.C. Gen. Stat. § 15A-401(d)(2). In reviewing officer conduct the polar star is
that prosecutors may not employ “the 20/20 vision of hindsight” but must make “allowance for the fact
that police officers are often forced to make split second judgments—in circumstances that are tense,
uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386 (1989). Whenever officers use deadly
force to defend themselves or to stop someone from harming others, the determination of whether they
properly used that force focuses on whether the circumstances as they appeared to the officers at the
time of the use of force were sufficient to create a belief in a reasonable person standing in their shoes
that such force was necessary. State v. Anderson, 253 S.E.2d 48 (1979).

The flashlight possessed by Thompson was not a traditional rod-style flashlight, but a hinged flashlight
with two pieces that open at a right angle. This incident occurred at night at the roadside, during a period
of rain. Considering the weather conditions and the appearance of the flashlight from a distance, it is
reasonable that Wortman and Hankins believed that Thompson possessed a firearm. Their belief that
Thompson was armed was heightened by the fact that Pickett left the vehicle upon being approached
and by the fact that officers found loaded weapons during four different traffic stops in the same area
earlier in the night.

In light of the facts and circumstances that appeared to Wortman at the moment he fired, his use of
force cannot be deemed criminal. Hankins, a similarly situated officer, also believed that Thompson
possessed a weapon. Their mistaken belief that the flashlight was a weapon will not be second guessed
in the cool calm of hindsight. Wortman, who has been on paid administrative leave since this shooting,
should be allowed to return to his duties as soon as he is able.

Criminal Charges against Thompson and Pickett

Thompson was charged with Resisting Public Officer for failing to comply with commands, namely
to show his hands when ordered by Wortman. Several officers later related to Chief Crayton that
Thompson was appreciably impaired during this incident. Accordingly, Thompson may not have been
intentionally trying to disobey commands. Additionally, while Wortman may have believed that
Thompson was moving his hands to brandish a weapon, Thompson’s same movement, with a flashlight
in his hands, could be interpreted as a response to a lawful command to show his hands. In view of these
circumstances, I am dismissing that charge.
Officer-Involved Shooting on January 17, 2019 in Maple Hill Page 3

After the shooting, while still at the scene, Thompson was asked for his name by Barnes. Thompson
give a fictitious name and date of birth. Later, at the detention center, he gave a different name to booking
officers. He was charged with the felony of Identity Theft when he continued to be untruthful.
Thompson was impaired and had just endured a traumatic event when subject to questioning by the very
agency that had recently fired at him. His conduct, while illegal, should be viewed in the larger context
of these factors. I am dismissing this charge in the interest of justice.

A record check by Pender County authorities revealed that Thompson had an outstanding order for
his arrest from Onslow County for Hit/Run Leaving the Scene of an Accident that Resulted in Property
Damage. These charges were served by Pender County authorities on Thompson at the jail. These charges
remain pending.

Back at the scene, detectives opened a center console in the Tahoe and found a glass mason jar
containing three (3) separate bags of what he believed to be marijuana with an extra empty bag (totaling
approximately ½ ounce), a yellow box of sandwich bags, a digital scale, an unopened Dutch Master cigar
package, and an opened Dutch Master cigar package. The items were seized and placed into evidence.
Pickett, who was not the registered owner of the vehicle and was never seen driving it, was charged with
the felonies of Maintaining a Vehicle for the Keeping or Selling of a Controlled Substance, Manufacturing
Marijuana, and Possession with Intent to Sell and Deliver Marijuana.

Search and seizure is guided by the Fourth Amendment, which gives ordinary citizens the right to an
expectation of privacy in a car, in their home, or on their person. The discovery of the drugs at issue in
this case was made without officers first securing a search warrant. A warrantless search of an individual’s
person is permitted when the search is done when officers believe that the subject is dangerous and has
immediate access to the weapon or incident to a valid arrest. Michigan v. Long, 463 U.S. 1032 (1983),
United States v. Robinson, 414 U.S. 218 (1973). A warrantless search incident to arrest can extend to the
interior compartment of a vehicle “only if it is reasonable to believe that the arrestee might access the
vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” Arizona
v. Gant, 556 U.S. 332 (2009).

Thompson was in custody and Pickett was no longer in the car when it was searched. While officers
can seize contraband in their plain view, they cannot search a center console, as in this case, absent a
warrant, or absent one of the limited exceptions to the warrant requirement under the Fourth
Amendment. Texas v. Brown, 460 U.S. 730 (1983). Because officers were no longer in danger at the time
of the search and because entry into the console area exceeded the investigation for a charge of resisting
arrest, any evidence obtained would be excluded in a court of law under the “Fruit of the Poisonous
Tree” doctrine. Wong Sun v. United States, 371 U.S. 471 (1963). Accordingly, all three drug charges
must be dismissed.

Conclusion

My job is to uphold the Constitution and to ensure that justice is done. That means that Detective
Wortman should not be criminally charged. It also means that the criminal charges lodged against
Thompson and Pickett by the Pender County Sheriff’s Office should be dismissed.

Sheriff Cutler has recently begun his tenure as sheriff and is in the process of building a team. As he
embarks on this mission, my office will continue to provide legal advice. Article IV, Section 18, North
Carolina Constitution. To that end, I convened a meeting with Sheriff Cutler and senior members of his
command staff to meet directly with Chief Crayton so that he could answer any questions regarding the
Officer-Involved Shooting on January 17, 2019 in Maple Hill Page 4

outside investigation. At this meeting, I also detailed the legal reasoning that I have set forth in this letter
today.

It is undoubtedly true that officers have a dangerous and difficult job and put their very lives in danger
to serve and protect the rest of us. It is equally true that citizens should expect that officers use no more
force than is reasonably necessary in the performance of those duties. Everyone should be grateful that
no one was harmed this night.

Sincerely,

Benjamin R. David
District Attorney