State of North Carolina General Court of Justice Prosecutorial District Three B

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1 State of North Carolina General Court of Justice Prosecutorial District Three B SCOTT E. THOMAS PH: (252) DISTRICT ATTORNEY FX: (252) REPORT AND MEMORANDUM: NBPD OFFICER ALEXANDER THALMANN, NBPD OFFICER JUSTIN WESTER, AND BRYAN A. STALLINGS This report contains the factual findings I have reviewed, and the legal conclusions I have drawn from those facts, regarding the fatal shooting death of New Bern Police Officer Alexander Thalmann, the shooting injury to New Bern Police Officer Justin Wester, and the officer-involved shooting death of Bryan A. Stallings, on March 28, 2014, in New Bern. STATEMENT OF THE FACTS The following facts are drawn from a thorough investigation into this matter by the North Carolina State Bureau of Investigation (SBI), both as an investigation into the homicide of Officer Thalmann and as an investigation into the officer-involved shooting of Bryan Stallings. The SBI report provided to me included witness statements, reviews of evidence (including video recordings and other materials), examinations of evidence (including firearm examinations), and the autopsy of Stallings. 1. At approximately 11:43 p.m. on Friday, March 28, 2014, New Bern Police Officer Alexander Thalmann was on routine vehicle patrol in the vicinity of the Craven Terrace public housing complex, when he encountered Bryan Augustus Stallings. Officer Thalmann s patrol vehicle, an older model Crown Victoria, was not equipped with a dashboard video camera. 2. Stallings was riding a bicycle at the time, and it was raining. He was dressed in a black coat, dark pants and black shoes, and was wearing a black backpack. Thalmann activated his blue lights and stopped Stallings on Pavie Avenue due to not having lights on the bicycle operating while on a public street, and spoke to Stallings. Thalmann radioed in that he was going to conduct a field interview, 1

2 and then called in an identification that Bryan Stallings was the person he had stopped, along with Stallings date of birth. 3. Immediately upon coming into contact with Stallings, Thalmann noted the strong odor of marijuana emanating from Stallings. Though Thalmann initially came into contact with Stallings regarding a minor bicycle light violation, he could not ignore the newly discovered evidence of a potential drug violation. Thalmann radioed for an additional officer to assist him. Officer Justin Wester, Sgt. Derek Dubay, and Officer Adam Sneeden responded to assist. 4. Thalmann advised the arriving officers that he stopped Stallings for not having a light on his bicycle while on a public street, and that he detected the strong odor of marijuana and they too detected the same. After Thalmann told Stallings of his intention to pat down and search Stallings, Stallings initially objected and became verbally agitated before he voluntarily surrendered his backpack to Sgt. Dubay. 5. After surrendering the backpack, Stallings stepped in one direction, and then quickly turned in the other and ran on foot from the officers at full speed. Thalmann, Wester and Sneeden gave immediate foot chase, with Thalmann in the lead. The officers gave commands to Stallings to stop, which Stallings ignored. Dubay secured the backpack inside a patrol vehicle, and secured the two patrol vehicles. Two residents of Pavie Avenue observed all interactions between Stallings and the officers from the time Thalmann initially came into contact with Stallings until the time that he ran away. 6. The course of the chase is shown on the path indicated on the attached diagram. SBI agents estimate the distance of the chase to have been approximately a quarter of a mile. The initial stop occurred on Pavie Avenue, and the chase crossed Cedar Street and Bell Drive, to Oak Street and ended between buildings V and W of Craven Terrace. As they approached Oak Street, Wester lost sight of Stallings, but did not lose sight of Thalmann until just before Thalmann was shot. 7. At 11:51:09 p.m., according to New Bern Housing Authority surveillance cameras, Stallings crossed Oak Street with Thalmann in close pursuit (apparently less than 10 feet and closing)(11:51:11), and Stallings, using a Kahr 9mm semiautomatic firearm that he had concealed on his person, turned and fired one shot directly at Thalmann. (11:51:15) The shot struck Thalmann in the left side of the face and traveled into his head and neck. Thalmann immediately fell to the ground, and Stallings continued to run along Oak Street, away from Thalmann. 8. Thalmann never drew his weapon from his holster, and therefore fired no shots at Stallings. Thalmann at no time employed any kind of force upon Stallings. Thalmann was merely engaged in a foot chase and was closing in on Stallings. 9. Wester ran up to Thalmann, who was lying on his back, with his eyes closed, unresponsive. (11:51:24) As other officers were coming to assist Thalmann, 2

3 Wester then turned and gave chase to Stallings, who continued to run, down and across Oak Street, toward the space between two buildings, V and W of Craven Terrace. (11:51:27) Wester again gave commands to Stallings to stop and drop his gun. (11:51:30) Stallings made no movement to drop his weapon at any time. 10. As he continued to run, Stallings turned to his right and fired two shots in rapid succession at Wester. (11:51:32) Wester was approaching Stallings from the right side. One of the shots hit Wester in the upper right thigh. Stallings remained in a partially-turned stance, still holding his firearm. The distance between Stallings and Wester at the time of the shooting was approximately 30 feet. 11. Two seconds later (11:51:34), Wester returned fire at Stallings, shooting thirteen times very rapidly. Stallings right side was facing Wester. Three shots struck Stallings, two in the posterior side of his torso and one in the head. Each shot traveled in a right-to-left upward trajectory. Wester used his department-issued Glock 21, Generation 2,.45 caliber firearm, containing hollow-point ammunition. Stallings fell to the ground near the V building of Craven Terrace. 12. Wester stated after Stallings fired twice at him, hitting him once, Wester fired his weapon rapidly until the threat was stopped. Stallings never made a move to stop or drop his weapon. Wester was in fear for his own life, and was aware that Stallings had just shot Thalmann. 13. The total elapsed time between the time that Stallings shot Thalmann, and the time that Wester shot Stallings, was 19 seconds. The video recordings indicated continued rain and dimly lit conditions during that time. 14. Officer Sneeden arrived a moment later, and told Wester to sit down, as Wester s leg was bleeding profusely, and Sneeden, with Sgt. Dubay, checked on the condition of Stallings. Dubay applied a tourniquet to Wester s leg wound. 15. Dubay and Sneeden found Stallings on the ground, with his right hand above his head, and the Kahr 9mm firearm just above his head. The officers secured the weapon and found that Stallings was unresponsive. 16. Emergency medical personnel were summoned immediately and two ambulances arrived quickly. Because of the path each ambulance took in getting to the scene, each stopped at Stallings location first, and found Stallings to have no pulse, and concluded that he was deceased. They then moved on to Thalmann and continued the CPR that was begun by a fellow NBPD officer. The ambulances took Thalmann and Wester to CarolinaEast Medical Center, where Thalmann was then transported to Vidant Medical Center in Greenville for further treatment. 17. Stallings was determined to be deceased at the scene. His body was covered by a portable tent to protect him from the elements, and remained at the scene until SBI agents arrived so as not to interfere with their on-scene investigation. 3

4 Stallings was later transported to CarolinaEast Medical Center. At the conclusion of the autopsy performed at Onslow Memorial Hospital on March 31, 2014, the Medical Examiner listed the cause of death as multiple gunshot wounds: two in the posterior side of his torso and one in the head. Each shot traveled in a rightto-left upward trajectory. The pathologist/medical examiner stated that the right to left trajectory of the bullets is consistent with Stallings running, bending at the waist, and twisting to the right to fire at Wester on his right side. 18. Among the evidence collected at the scene were: (a) a single 9mm Luger RP shell casing near Thalmann; and (b) two 9mm Luger RP shell casings near the location where Wester was shot. These casings matched the 9mm Kahr semiautomatic firearm that Stallings was carrying. 19. Bryan Augustus Stallings, a/k/a William Ellison, B/M, dob: 11/14/1978, was 35 years old at the time of his death. 20. Thalmann was pronounced dead on March 31, 2014, at Vidant Medical Center. The cause of death was listed as a gunshot wound to the head. Alexander Edward Thalmann, W/M, dob: 2/3/1992, was 22 years old at the time of his death. He was a graduate of Washington High School, and served in the United States Marine Corps. He completed Basic Law Enforcement Training at Beaufort Community College in June, He joined the New Bern Police Department in August, Justin Wester, W/M, was 23 years old at the time of the shootings. Wester s gunshot wound was a through and through penetrating wound to the upper right thigh. The bullet entered his front upper right thigh and exited his back upper right thigh. He received treatment at CarolinaEast Medical Center, and was released from the hospital on March The medical examiner nurse at CarolinaEast Medical Center who initially examined Stallings found, in Stallings clothing, a string tied to Stallings belt, from which hung a small cloth bag inside of his pant, containing approximately 28 grams of marijuana and 2 grams of crack cocaine. 23. A search of Stallings black backpack also revealed that Stallings was carrying a quantity of plastic bags commonly used to package illegal drugs. 24. The clothing that Stallings was wearing, as inventoried by the Medical Examiner, included a black coat, black shoes, and dark pants. These are consistent with the description given by Sgt. Dubay at the scene and in his statement. 25. Stallings had an extensive criminal record, mostly out of State, which is detailed in the chart attached to this report. One of those convictions was a 2002 charge in Florida of Lewd or Lascivious Conduct with a Victim Less than 16 Years of Age. He was convicted under an alias, William Ellison, and as a result of that 4

5 conviction, he was a registered sex offender. He was initially sentenced to a 10- year prison term, with 3 years suspended. He served the active portion in Florida prisons, and after his release in 2008, he returned to North Carolina. Notable among his remaining record were misdemeanor convictions for Resisting, Delaying and Obstructing a Police Officer and Trespassing in New Bern in A review of those files indicated that Stallings encountered New Bern Police officers in Craven Terrace, where he fled from them, taking shelter in his mother s apartment. After officers secured a search warrant, they found Stallings hiding under the insulation in the attic. At the time, he was wanted in Florida for violating his sex offender registration requirements. He pled guilty to the New Bern charges and served a sentence in the Craven County jail. He was transported to Florida in early 2009, where he served a prison sentence for his charges there, including the three-year suspended term from his earlier sex offense conviction. When he returned to New Bern in 2012, he registered as a sex offender with the Craven County Sheriff s Office. 26. Stallings registered address for the sex offender registry was 500 Old Pollocksville Road, near the River Bend community, more than six miles away from the scene of the shooting. A family member who resides there reported not having seen Stallings for approximately three days prior to the shooting. 27. Stallings had previously stated to several people on several occasions that, having served approximately 10 years in prison in Florida, he was not going back to prison for anyone or anything. One friend of Stallings who was interviewed by the SBI stated that he knew Stallings regularly carried a gun, and that he had seen it some time ago, and it was a 9mm handgun. This friend also knew that Stallings had sold marijuana. Stallings had told this friend that he did not want to go back to prison, saying he would do what he had to do to stay out. A second friend, also interviewed by the SBI, who lived near the location of the initial stop, said that, just prior to running, Stallings gave her a look as if something was going to happen. She also reported that Stallings made it known to her that he was not going back to prison and would die before he would go back. Finally, a third witness, also living near the location of the initial stop, reported that Stallings did not have a light operating on his bicycle, and that after the chase began, he heard one shot, then approximately three shots, then a lot of shots all of which was consistent with the rest of the evidence in this matter. 28. Stallings had spent most of the night of March 28, 2014, at B16 Craven Terrace, with friends. Stallings previous convictions, including those for drug possession and trespassing, would have meant he was prohibited from being on Craven Terrace property. After he left B16 Craven Terrace, he indicated he was going to a residence on Pavie Avenue to spend the night. He was traveling on a bicycle he borrowed from a friend. 29. An ATF trace of the Kahr 9mm semiautomatic firearm in Stallings possession, which he used to kill Thalmann and shoot Wester, showed that the firearm was 5

6 stolen from the vehicle of the lawful owner on July 22, The owner had immediately filed a police report, but the firearm had not surfaced until these events. SBI INVOLVEMENT 30. I, District Attorney Scott Thomas, and New Bern Police Department Chief Toussaint Summers, requested the North Carolina State Bureau of Investigation (SBI) to conduct an investigation of the death of Thalmann and the officerinvolved shooting death of Stallings. This is standard procedure in any officerinvolved shooting in order to maintain neutrality and objectivity in the investigation. 31. Upon notification, several SBI agents traveled to the scene and arrived during the early morning hours of March 29, They conducted an analysis of the scene, collected evidence and began interviewing witnesses. I joined them on the scene and was briefed as to the investigation and their initial findings. I have met with the agents several times during the course of the investigation and have again observed all locations referenced in this report, related to the March 28, 2014, shootings. 32. The SBI investigation began March 29, 2014, and concluded recently. Upon its conclusion, I was briefed by SBI agents as to their findings. The investigation consisted of the following: processing of the locations of both shootings, collection of evidence, analysis of firearms, attendance at Stallings autopsy, collection and viewing of video from surveillance cameras at Craven Terrace, interviews of police officers, interviews of private citizens, and interviews of family and associates of Stallings. CONCLUSIONS Based on the foregoing facts, and after considering the applicable statutes and case law of North Carolina, I have made the following conclusions as to these matters: I. DEATH OF ALEXANDER THALMANN A. At the time that Officer Thalmann stopped Bryan Stallings, Stallings was in violation of North Carolina General Statute , requiring proper lights on bicycles operated between sunset and sunrise. B. The circumstances surrounding that stop led Officer Thalmann, and the other responding officers, to a reasonable suspicion that Mr. Stallings was engaged in criminal activity. Officer Thalmann acted upon that suspicion and detained Stallings briefly. Immediately upon making contact with Stallings, Thalmann detected the strong odor of marijuana, and, especially after confirmation of that 6

7 odor by other officers, developed probable cause to search Stallings for the illegal possession of marijuana. C. A search of Stallings was, and would have been, supported by that reasonable suspicion and probable cause, and would have been lawful. D. In addition to the bicycle lighting violation, Stallings committed a further criminal act by resisting, delaying or obstructing Officer Thalmann and others, by fleeing the scene where he was stopped and by failing to follow the officers commands to stop. (N.C.G.S ) E. Stallings committed a further criminal act by being a convicted felon in possession of a firearm. (N.C.G.S ) F. Stallings committed a further criminal act by being in possession of unlawful controlled substances. (N.C.G.S ) G. The pursuit of Stallings by Officers Thalmann, Wester and Sneeden was not only justified but mandated by the circumstances presented to them. H. Stallings shooting of Officers Thalmann and Wester was not justified in any way, and was done with an obvious intent to kill, consistent with Mr. Stallings previous statements that he would not return to prison for any reason. I. North Carolina General Statute 15A-401(f) prohibits the use of a deadly weapon or deadly force to resist a lawful arrest, when the person knows that the officer is a law enforcement officer, and that the officer is effecting or attempting to effect an arrest. Based upon his conduct, Stallings was clearly aware of both of these facts, yet used a deadly weapon and deadly force on both officers. J. Stallings had three opportunities to stop and comply with the officers at the initial stop and inquiry by the officers, at the time that Thalmann closed in to physically stop him, and when Wester told him to stop and drop his weapon. Instead of taking any one of these opportunities, Stallings ran, shot Thalmann, and shot Wester. K. Had Stallings survived the events that he set in motion, I believe there would have been probable cause to have charged him with the following criminal offenses: a. First-Degree Murder of Thalmann (N.C.G.S ); b. Attempted First-Degree Murder of Wester (N.C.G.S ); c. Assault with a Deadly Weapon with Intent to Kill, Inflicting Serious Injury as to Wester (N.C.G.S (a)); d. Assault with Firearm on a Law Enforcement Officer (2 counts)(n.c.g.s ); e. Possession of a Firearm by Convicted Felon (N.C.G.S ); 7

8 f. Possession of a Stolen Firearm (N.C.G.S ; 14-72); g. Possession with Intent to Sell or Deliver Marijuana (N.C.G.S ); h. Possession with Intent to Sell or Deliver Cocaine (N.C.G.S ); i. Going Armed to the Terror of the People (common law); j. Possession of Drug Paraphernalia (N.C.G.S ); k. Resist, Delay and Obstruct an Officer (N.C.G.S ); l. Second-Degree Trespass (N.C.G.S ); and m. Violation of bicycle-lighting requirement (N.C.G.S (e)). II. OFFICER-INVOLVED SHOOTING OF STALLINGS L. Officer Justin Wester participated in the brief detention, and subsequent foot chase, of Bryan Stallings, and observed Stallings actions and demeanor prior to engaging in the chase with other officers. M. Although Officer Wester had briefly lost sight of Stallings and Officer Thalmann, he heard the gunshot from Stallings gun that wounded, and eventually killed, Officer Thalmann. N. Officer Wester continued the foot pursuit and, nine seconds after hearing the shot, observed Officer Thalmann lying on the ground, unresponsive, with Stallings running away. O. Officer Wester drew his weapon shortly before Stallings fired upon him. Stallings fired his weapon twice, striking Officer Wester one time. After being hit, Wester then returned fire at Stallings. P. Pursuant to North Carolina General Statute 15A-401(d)(2), Officer Wester s shooting of Stallings was a justified use of lethal force for the following reasons: (1) to defend himself from the actual continued use of deadly force by Stallings; (2) to effect an arrest for the shooting of Officer Thalmann of a person who was attempting to escape by means of a deadly weapon; (3) to effect an arrest of a person, who by his conduct indicated he presented an immediate threat of death or serious physical injury to others unless apprehended without delay. Therefore, Officer Wester s actions were justified and lawful, and no criminal charges will be filed. 8

9 Copies of this report and attachments will be made available to the public through media outlets, and have been provided to the Thalmann family, Chief Toussaint Summers, NBPD; NC SBI Special Agent Stratton Stokes; Officer Justin Wester, NBPD; and the Stallings family. The New Bern Housing Authority surveillance video of the shootings will not be released by my office in order to prevent improper use of the in:zages;however, any of the parties listed above may view it in a controlled environment to verify the description of events in this memorandum. No photographs or recordings of the surveillance video will be allowed. Date: May 8,2014 9

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11 BRIAN AUGUSTUS STALLINGS a/k/a WILLIAM ELLISON Date of Birth: 11/14/1978 CRIMINAL HISTORY: 1995: (Age 16): Disorderly Conduct, Craven County. 2yrs unsupervised probation 1996: (Age 17): (a) Possession of Cocaine (felony), Craven County. 2 yrs supervised probation. Probation revoked 10/26/1998, active sentence imposed (b) Resisting Public Officer, Craven County. 2 yrs supervised probation Probation revoked 10/26/1998, active sentence imposed (c) Misdemeanor Larceny, Craven County. 2 yrs supervised probation Probation revoked 10/26/1998, active sentence imposed 1997: (Age 18): (a) No Operator s License, Craven County. Fine/costs (b) (c) No Operator s License, Jones County, consolidated with: Driving After Consuming Alcohol <21 years of age, Jones County. 1998: (Age 19): Shoplifting, Pitt County. Unsupervised probation. 1999: (Age 20) (a) Misdemeanor Larceny, Pitt County. 42 days in jail (time served), consolidated with: (b) Injury to Personal Property, Pitt County. 2000: (Age 21): (a) Carrying Concealed Weapon, Osceola, Florida. 60 days in jail, consolidated with: (b) (c) Resisting Officer, Osceola, Florida. 37 days in jail, AND Misdemeanor Larceny, Osceola, Florida. 2001: (Age 22): (a) Delivery of Cocaine, Kissimmee, Florida, 1 year in jail, consolidated with: (b) (c) Smuggling Contraband into Jail, Kissimmee, Florida, AND Resisting Officer, Kissimmee, Florida. 2002: (Age 23): (a) False Imprisonment and Resisting an Officer with Violence, Osceola, Florida. 5 year prison sentence, consolidated with: (b) Lewd or Lascivious Conduct, Victim Under 16 Years of Age, Osceola, Florida. Required to register as sex offender. Probation revoked, October 2002, 7 year prison sentence imposed. 1

12 2008: (Age 29): (a) Second Degree Trespass, Craven County. 119 days in jail, consolidated with: (b) Resisting Public Officer, Craven County. 2010: (Age 31) (a) Sex Offender Failing to Comply with Registration, Osceola, Florida, consolidated with: (b) Sex Offender Failing to Notify Sheriff of Address, Osceola, Florida, AND (c) Parole Violation (for earlier Lewd and Lascivious Conduct): 3 years in prison, Florida Dept. of Corrections. Released from prison in Florida: December 1, 2012 Registered as a Sex Offender in North Carolina: December 3, 2012, with registered address on Old Pollocksville Road, New Bern 2

13 TIMELINE FOR VIDEO RECORDING CRAVEN TERRACE CAMERA #6, 3/28/ :51:09 PM 11:52:26 PM TIME EVENT 11:51:09 Car turns onto Oak Street; figure is seen running across the street, behind the car: Stallings 11:51:11 Second figure runs across street: Thalmann in pursuit of Stallings 11:51:15 Muzzle flash above car lights, to the left of light pole: Stallings fires one shot at Thalmann 11:51:24 Third figure runs across street: Wester 11:51:27 Figure crosses street in other direction, runs in front of parked car: Stallings 11:51:30 Figure crosses street in other direction, running behind car: Wester 11:51:32 Muzzle flash, left side of street: Stallings fires first shot at Wester 11:51:32 Muzzle flash, left side of street: Stallings fires second shot at Wester 11:51:34 Muzzle flashes: Wester fires numerous shots at Stallings, while moving and seeking cover 11:51:45 Figure appears near Wester s position: Ofcr. Sneeden 11:52:26 Police car on scene, pauses near Wester s location, then moves on: Ofcr. McKee responding to Thalmann s location