In Re Mellott , 27 N.C. App. 81 ( 1975 )

217 S.E.2d 745 (1975) 27 N.C. App. 81

In the Matter of Dennis Paul MELLOTT.

No. 7512DC412.

Court of Appeals of North Carolina.

September 17, 1975.

Atty. Gen. Rufus L. Edmisten by Robert R. Reilly, Associate Atty. Gen., Raleigh, for the State.

John A. Decker, Asst. Public Defender, Fayetteville, for respondent.

BROCK, Chief Judge.

Respondent urges this Court to adopt a rule that would prohibit the use of extrajudicial statements of a juvenile unless made in the presence of a parent or counsel, and after all of them had been advised of the juvenile's Miranda rights.

Respondent argues in his brief that he is only twelve years of age. However, the only finding or intimation of respondent's age in the record on appeal is that respondent is less than sixteen years of age. Be that as it may, we adhere to the principles approved in State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971). "[A] minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement." "The correct test of the admissibility of a confession is whether the confession was, in fact, voluntary under all the circumstances of the case."

The record on appeal in this case contains the following summation: "(At this point the court examined Deputy Goins concerning the procedure that he used in advising each of the three boys of their MIRANDA rights prior to questioning. Deputy Goins testified that all three were fully warned and each advised the deputy that they understood their rights.)" Respondent offered no evidence upon the voluntariness of his confession to Deputy Goins. If respondent felt there was evidence tending to show a lack of voluntariness of his confession, whether such lack of voluntariness stemmed from his age or otherwise, surely he would have included it in the record on appeal for our review. We find no suggestion of circumstances surrounding the interrogation which would tend to render respondent's confession inadmissible.

Respondent's assignment of error to the refusal of the trial judge to dismiss the petition is without merit.

Affirmed.

PARKER and ARNOLD, JJ., concur.