State v. SaldiernaÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1345-2
Filed: 18 July 2017
Mecklenburg County, Nos. 13 CRS 201161, 201164, 202210, 202213
STATE OF NORTH CAROLINA
v.
FELIX RICARDO SALDIERNA
On remand from the Supreme Court of North Carolina in accordance with their
opinion, ___ N.C. ___, 794 S.E.2d 474 (2016). Previously heard by this Court on 2
June 2015, ___ N.C. App. ___, 775 S.E.2d 326 (2015), from appeal by defendant from
order entered 20 February 2014 by Judge Forrest D. Bridges and judgment entered
4 June 2014 by Judge Jesse B. Caldwell in Mecklenburg County Superior Court. The
issue addressed on remand is the validity of defendant’s waiver of his statutory and
constitutional rights.
Attorney General Roy Cooper, by Assistant Attorney General Jennifer St. Clair
Watson, for the State.
Goodman Carr, PLLC, by W. Rob Heroy, for defendant.
BRYANT, Judge.
Where the totality of the circumstances shows that the juvenile defendant did
not knowingly, willingly, and understandingly waive his rights pursuant to the State
and federal constitutions or N.C. Gen. Stat. § 7B-2101(d), the trial court erred in
STATE V. SALDIERNA
Opinion of the Court
denying defendant’s motion to suppress his statement made to an interrogating
officer, and we reverse, vacate, and remand.
Juvenile defendant Felix Ricardo Saldierna was arrested on 9 January 2013 at
his home in South Carolina in connection with incidents involving several homes
around Charlotte that had been broken into on 17 and 18 December 2012.1 Before
questioning, the detective read defendant his rights and asked whether he
understood them. Defendant ultimately signed a Juvenile Waiver of Rights form, of
which defendant had been given two copies—one in English and one in Spanish.
After initialing and signing the English language form, Felix, who was sixteen years
old at the time, asked to call his mother before undergoing custodial questioning by
Detective Kelly of the Charlotte-Mecklenburg Police Department. The call was
allowed, but defendant could not reach his mother. The custodial interrogation then
began. Over the course of the interrogation, defendant confessed his involvement in
the incidents in Charlotte on 17 and 18 December 2012.
On 22 January 2013,
[d]efendant was indicted . . . for two counts of felony
breaking and entering, conspiracy to commit breaking and
entering, and conspiracy to commit common law larceny
after breaking and entering. On 9 October 2013, defendant
moved to suppress his confession, arguing that it was
illegally obtained in violation both of his rights as a
juvenile under N.C.G.S. § 7B-2101 and of his rights under
the United States Constitution. After conducting an
1 See State v. Saldierna, ___ N.C. App. ___, ___, 775 S.E.2d 326, 327–30 (2015) and State v.
Saldierna, ___ N.C. ___, 794 S.E.2d 474, 477–76 (2016) for more comprehensive statements of the facts.
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Opinion of the Court
evidentiary hearing, the trial court denied the motion in an
order entered on 20 February 2014, finding as facts that
defendant was advised of his juvenile rights and, after
receiving forms setting out these rights both in English and
Spanish and having the rights read to him in English by
[Detective] Kelly, indicated that he understood them. In
addition, the trial court found that defendant informed
[Detective] Kelly that he wished to waive his juvenile
rights and signed the form memorializing that wish.
....
On 4 June 2014, defendant entered pleas of guilty to
two counts of felony breaking and entering and two counts
of conspiracy to commit breaking and entering, while
reserving his right to appeal from the denial of his motion
to suppress. The court sentenced defendant to a term of six
to seventeen months, suspended for thirty-six months
subject to supervised probation.
The Court of Appeals reversed the trial court’s order
denying defendant’s motion to suppress, vacated the
judgments entered upon defendant’s guilty pleas, and
remanded the case to the trial court for further
proceedings. The Court of Appeals recognized that the trial
court correctly found that defendant’s statement asking to
telephone his mother was ambiguous at best. . . . [but it]
held that when a juvenile between the ages of fourteen and
eighteen makes an ambiguous statement that potentially
pertains to the right to have a parent present, an
interviewing officer must clarify the juvenile’s meaning
before proceeding with questioning.
Saldierna, ___ N.C. at ___, 794 S.E.2d at 476–77 (footnote omitted) (citations
omitted). The Supreme Court of North Carolina granted the State’s petition for
discretionary review. Id. at ___, 794 S.E.2d at 477.
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Opinion of the Court
In reviewing this Court’s opinion in Saldierna, the Supreme Court reasoned
that “[a]lthough defendant asked to call his mother, he never gave any indication that
he wanted to have her present for his interrogation, nor did he condition his interview
on first speaking with her.” Id. at ___, 794 S.E.2d at 479. As a result, the Supreme
Court reversed the decision of the Court of Appeals “[b]ecause defendant’s juvenile
statutory rights were not violated[.]” Id. However, in doing so, the Supreme Court
noted that “[e]ven though we have determined that defendant’s N.C.G.S. § 7B-
2101(a)(3) right [(to have a parent present during questioning)] was not violated,
defendant’s confession is not admissible unless he knowingly, willingly, and
understandingly waived his rights.” Id. (citing N.C.G.S. § 7B-2101(d)). Thus, the
case was remanded to this Court “for consideration of the validity of defendant’s
waiver of his statutory and constitutional rights.” Id.
_________________________________________________________
As the Supreme Court of North Carolina has determined that defendant’s
N.C.G.S. § 7B-2101(a)(3) right was not violated as “defendant’s request to call his
mother was not a clear invocation of his right to consult a parent or guardian before
proceeding with the questioning[,]” Saldierna, ___ N.C. at ___, 794 S.E.2d at 475, the
question before us now on remand is whether defendant knowingly, willingly, and
understandingly waived his rights under section 7B-2101 of the North Carolina
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STATE V. SALDIERNA
Opinion of the Court
General Statutes and under the constitutions of North Carolina and the United
States, so as to make his confession admissible. We conclude that he did not.
“The standard of review in evaluating the denial of a
motion to suppress is whether competent evidence
supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law.” State v.
Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011)
(citing State v. Brooks, 337 N.C. 132, 140–41, 446 S.E.2d
579, 585 (1994)). Findings of fact [as to whether a waiver
of rights was made knowingly, willingly, and
understandingly] are binding on appeal if [they are]
supported by competent evidence, State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted),
while conclusions of law [regarding whether a waiver of
rights was valid and a subsequent confession voluntary,]
are reviewed de novo, State v. Ortiz-Zape, 367 N.C. 1, 5,
743 S.E.2d 156, 159 (2013) (citing Biber, 365 N.C. at 168,
712 S.E.2d at 878), cert. denied, — U.S. —, 134 S. Ct. 2660,
189 L. Ed. 2d 208 (2014).
Id. at ___, 794 S.E.2d at 477.
“In order to protect the Fifth Amendment right against compelled self-
incrimination, suspects, including juveniles, are entitled to the warnings set forth in
Miranda v. Arizona, prior to police questioning.” In re K.D.L., 207 N.C. App. 453,
457, 700 S.E.2d 766, 770 (2010) (citing 384 U.S. 436, 478–79, 16 L. Ed. 2d 694, 726
(1966)). Thus,
[t]he North Carolina Juvenile Code provides additional
protection for juveniles. Juveniles who are “in custody”
must be advised of the following before questioning begins:
(1) That the juvenile has the right to remain
silent;
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Opinion of the Court
(2) That any statement the juvenile does
make can be and may be used against the
juvenile;
(3) That the juvenile has a right to have a
parent, guardian, or custodian present
during questioning; and
(4) That the juvenile has a right to consult
with an attorney and that one will be
appointed for the juvenile if the juvenile is
not represented and wants
representation.
Id. at 457–58, 700 S.E.2d at 770 (quoting N.C. Gen. Stat. § 7B-2101(a)(1)–(4) (2009)).
“Previous decisions by our appellate division indicate the general Miranda custodial
interrogation framework is applicable to section 7B-2101.” Id. at 458, 700 S.E.2d at
770 (citing In re W.R., 363 N.C. 244, 247, 675 S.E.2d 342, 344 (2009)); see id. at 459,
700 S.E.2d at 771 (“[W]e cannot forget that police interrogation is inherently
coercive—particularly for young people.” (citations omitted)).
“Before admitting into evidence any statement resulting from custodial
interrogation,[2] the court shall find that the juvenile knowingly, willingly, and
understandingly waived the juvenile’s rights.” N.C. Gen. Stat. § 7B-2101(d) (2015);
State v. Oglesby, 361 N.C. 550, 555, 648 S.E.2d 819, 822 (2007) (“Before allowing
evidence to be admitted from a juvenile’s custodial interrogation, a trial court is
2 The parties do not dispute that defendant was in custody at the time of questioning.
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Opinion of the Court
required to ‘find that the juvenile knowingly, willingly, and understandingly waived
the juvenile’s rights.’ ” (quoting N.C.G.S. § 7B-2101(d))).3
“Whether a waiver is knowingly and intelligently made depends on the specific
facts and circumstances of each case, including the background, experience, and
conduct of the accused.” State v. Simpson, 314 N.C. 359, 367, 334 S.E.2d 53, 59 (1985)
(citations omitted). “When determining the voluntariness of a confession, we examine
the ‘totality of the circumstances surrounding the confession.’ ” State v. Hicks, 333
N.C. 467, 482, 428 S.E.2d 167, 176 (1993) (quoting State v. Barlow, 330 N.C. 133,
140–41, 409 S.E.2d 906, 911 (1991)), abrogated by State v. Buchanan, 353 N.C. 332,
543 S.E.2d 823 (2001). Furthermore, “an express written waiver, while strong proof
of the validity of the waiver, is not inevitably sufficient to establish a valid waiver.”
Simpson, 314 N.C. at 367, 334 S.E.2d at 59 (emphasis added) (citation omitted).
“The State must show by a preponderance of the evidence that the defendant
made a knowing and intelligent waiver of his rights and that his statement was
voluntary.” State v. Flowers, 128 N.C. App. 697, 701, 497 S.E.2d 94, 97 (1998) (citing
State v. Thibodeaux, 341 N.C. 53, 58, 459 S.E.2d 501, 505 (1995)). Indeed, “the
3 Notably, in 2015, the General Assembly amended subsection (b) of N.C.G.S. § 7B-2101 to
raise the age from 14 to 16 with regard to the admissibility of juveniles’ in-custody admissions where
a parent is not present: “When the juvenile is less than 16 years of age, no in-custody admission or
confession resulting from interrogation may be admitted into evidence unless the confession or
admission was made in the presence of the juvenile’s parent, guardian, custodian, or attorney.” N.C.
Sess. Laws 2015-58, § 1.1, eff. Dec. 1, 2015. At the time of his custodial interrogation on 9 October
2013, defendant in the instant case had turned 16 on 19 August 2013, less than two months before.
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Opinion of the Court
burden upon the State to ensure a juvenile’s rights are protected is greater than in
the criminal prosecution of an adult.” In re M.L.T.H., 200 N.C. App. 476, 489, 685
S.E.2d 117, 126 (2009) (citing In re T.E.F., 359 N.C. 570, 575, 614 S.E.2d 296, 299
(2005)); see also Simpson, 314 N.C. at 367, 334 S.E.2d at 59 (“The prosecution bears
the burden of demonstrating that the waiver was knowingly and intelligently
made[.]” (citation omitted)).
Here, in denying defendant’s motion to suppress his confession, the trial court
found and concluded in relevant part as follows regarding defendant’s waiver of his
juvenile rights:
FINDINGS OF FACT
1. That Defendant was in custody.
2. That Defendant was advised of his juvenile rights
pursuant to North Carolina General Statute § 7B-
2101.
3. That Detective Kelly of the Charlotte-Mecklenburg
Police Department advised Defendant of his juvenile
rights.
4. That Defendant was advised of his juvenile rights in
three manners. Defendant was advised of his juvenile
rights in spoken English, in written English, and in
written Spanish.
5. That Defendant indicated that he understood his
juvenile rights as given to him by Detective Kelly.
6. That Defendant indicated he understood his rights
after being given and reviewing a form enumerating
those rights in Spanish.
7. That Defendant indicated he understood that he had
the right to remain silent. Defendant understood that
to mean that he did not have to say anything or
answer any questions. Defendant initialed next to this
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Opinion of the Court
right at number 1 on the English rights form provided
to him by Detective Kelly to signify his understanding.
8. That Defendant indicated he understood that
anything he said could be used against him.
Defendant initialed next to this right at number 2 on
the English rights form provided to him by Detective
Kelly to signify his understanding.
9. That Defendant indicated he understood that he had
the right to have a parent, guardian, or custodian
there with him during questioning. Defendant
understood the word parent meant his mother, father,
stepmother, or stepfather. Defendant understood the
word guardian meant the person responsible for
taking care of him. Defendant understood the word
custodian meant the person in charge of him where he
was living. Defendant initialed next to this right at
number 3 on the English rights form provided to him
by Detective Kelly to signify his understanding.
10. That Defendant indicated he understood that he had
the right to have a lawyer and that he had the right to
have a lawyer there with him at the time to advise and
help him during questioning. Defendant initialed next
to this right at number 4 on the English rights form
provided to him by Detective Kelly to signify his
understanding.
11. That Defendant indicated he understood that if he
wanted a lawyer there with him during questioning, a
lawyer would be provided to him at no cost prior to
questioning. Defendant initialed next to this right at
number 5 on the English rights form provided to him
by Detective Kelly to signify his understanding.
12. That Defendant initialed a space below the
enumerated rights on the English rights form then
stated the following: “I am 14 years old or more and I
understand my rights as explained by Detective Kelly.
I DO with [sic] to answer questions now, WITHOUT a
lawyer, parent, guardian, or custodian here with me.
My decision to answer questions now is made freely
and is my own choice. No one has threatened me in
any way or promised me special treatment. Because I
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Opinion of the Court
have decided to answer questions now, I am signing
my name below.”
13. That Defendant’s signature appears on the English
rights form below the initialed portions of the form.
Defendant’s signature appears next to the date, 1-9-
13, and the time, 12:10. Detective Kelly signed her
name as a witness below Defendant’s signature.
14. That after being informed of his rights, informing
Detective Kelly he wished to waive those rights, and
signing the rights form, Defendant communicated to
Detective Kelly that he wished to contact his mother
by phone. . . .
....
CONCLUSIONS OF LAW
1. That the State carried its burden by a preponderance
of the evidence that Defendant knowingly, willingly,
and understandingly waived his juvenile rights.
2. That the interview process in this case was consistent
with the interrogation procedures as set forth in
North Carolina General Statute § 7B-2101.
3. That none of Defendant’s State or Federal rights were
violated during the interview conducted of Defendant.
4. That statements made by Defendant were not
gathered as a result of any State or Federal rights
violation.[4]
4 “With respect to juveniles, both common observation and expert opinion emphasize that the
distrust of confessions made in certain situations . . . is imperative in the case of children from an early
age through adolescence.” In re Gault, 387 U.S. 1, 48, 18 L. Ed. 2d 527, 557 (1967) (internal citation
omitted); see also In re J.D.B., 564 U.S. 261, 269, 180 L. Ed. 2d 310, 321 (2011) (“[The] risk [of false
confessions] is all the more troubling—and recent studies suggest, all the more acute—when the
subject of custodial interrogation is a juvenile. See Brief for Center on Wrongful Convictions of Youth
et al. as Amici Curiae 21–22 (collecting empirical studies that ‘illustrate the heightened risk of false
confessions from youth’).”). Indeed, even Justice Alito, in his dissenting opinion, acknowledged the
“particular care” that must be taken with juveniles to ensure against involuntary confessions:
[W]here the suspect is much younger than the typical juvenile
defendant, courts should be instructed to take particular care to ensure
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Opinion of the Court
In the instant case, defendant was sixteen years of age at the time he was
interviewed by Detective Kelly and had only obtained an eighth grade education.
Defendant indicated Spanish was his primary language. He stated he could write in
English, but that he had difficulty reading English and difficulty in understanding
English as spoken. The interrogation took place in the booking area of the Justice
Center, and defendant was at all times in the presence of three law enforcement
officers.5 The transcript of the audio recording of Detective Kelly’s conversation with
defendant in which defendant was said to have “knowingly, willingly, and
understandingly” waived his rights and agreed to speak with the detective reads, in
full, as follows:
K: You understand I’m a police officer, right?
F: Yes maam.
K: Ok, and that I would like to talk to you about this. And
this officer has also explained to me and I understand that
I have the right to remain silent, that means that I don’t
have to say anything or answer any questions. Should be
that incriminating statements were not obtained involuntarily. The
voluntariness inquiry is flexible and accommodating by nature, and the
Court’s precedents already make clear that “special care” must be
exercised in applying the voluntariness test where the confession of a
“mere child” is at issue. If Miranda’s rigid, one-size-fits-all standards
fail to account for the unique needs of juveniles, the response should be
to rigorously apply the constitutional rule against coercion to ensure
the rights of minors are protected.
Id. at 297–98, 180 L. Ed. 2d at 340 (Alito, J., dissenting) (internal citations omitted).
5 Four officers were involved in defendant’s arrest, including Detective Kelly.
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Opinion of the Court
right there number 1 right on there. Do you understand
that?
F: [unintelligible] questions?
K: Yes, that is your right? So do you understand that? If
you understand that, put your initials right there showing
that you understand that. On this sheet. On this one. You
can put it on both. Anything I say can be used against me.
Do you understand that?
F: Yes maam.
K: I have the right to have a parent guardian or custodian
here with me now during questioning. Parent means my
mother, father, stepmother, or stepfather. Guardian means
the person responsible for taking care of me. Custodian
means the person in charge of me where I am living. Do
you understand that? Do you want to read that?
F: Yeah.[6]
K: Do you understand that?
F: [no response]
K: I have the right to talk to a lawyer and to have a lawyer
here with me now to advise and help during questioning.
Do you understand that?
F: [unintelligible]
K: If I want to have a lawyer with me during questioning
one will be provided to me at no cost before any
questioning. Do you understand that?
F: Yes maam.
6It is unclear whether defendant’s response—“Yeah”—is a response to the first question, “Do
you understand that?” or a response to the second question, “Do you want to read that?”
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Opinion of the Court
K: Ok. Now I want to talk to you about some stuff that’s
happened in Charlotte. And um, I will tell you this. There’s
been some friends of yours that have already been
questioned about these items and these issues. And they’ve
been locked up. And that’s what I want to talk to you about.
Do you want to help me out and help me understand what’s
been going on with some of these cases and talk to me about
this now here?
F: Uh
K: Are you willing to talk to me is what I’m asking.
F: Yes maam.
K: Ok. So I am 14 years or more. Let me see that pen. And
I understand my rights as they’ve been explained by
[D]etective Kelly. I do wish to answer questions now
without a lawyer, parent, guardian or custodian here with
me? My decision to answer questions now is made freely
and is my own choice. No one has threatened me in any
way or has promised me any special treatment because I
have decided to answer questions now. I am signing my
name below. Do you understand this? Initial, sign, date and
time.[7]
[noise]
K: it is 1/9/13. It is 12:10PM. [unintelligible background
talking among officers]
F: Um, Can I call my mom?
K: Call your mom now?
F: She’s on her um. I think she is on her lunch now.
K: You want to call her now before we talk?
7 Notably, there is no recorded affirmative response by defendant to this question.
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Opinion of the Court
K [to other officers]: He wants to call his mom.
F: Cause she’s on, I think she’s on her lunch.
Other officer: [unintelligible] He left her a message on her
phone.
F: But she doesn’t speak English.
[conversation among officers]
K: I have mine. Can he dial it from a landline you think?
[more unintelligible conversation among officers]
[other officer]: step back outside and we’ll let you call your
mom outside. [unintelligible]. You’re going to have to talk
to her. Neither one of us speak Spanish, ok.
[more unintelligible conversation among officers].
9:50: [[defendant] can be heard on phone. Call is not
intelligible.]
10:40 F [Phone can be heard making a phone call in
Spanish]
[Sound of door closing].
K: 12:20: Alright Felix, so, let’s talk about this thing going
on. Like I said a lot of your friends have been locked up and
everybody’s talking. They’re telling me about what’s going
on and what you’ve been up to. I’m not saying you’re the
ringleader of this here thing and some kind of mastermind
right but I think you’ve gone along with these guys and
gotten yourself into a little bit of trouble here. This is not
something that’s going to end your life. You know what I’m
saying. This is not a huge deal. I know you guys were going
into houses when nobody was home. You weren’t looking to
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Opinion of the Court
hurt anybody or anything like that. I just want to hear your
side of the story. We can start off. I’m going to ask you
questions I know the answer to. A lot of these questions are
to tell if you’re being truthful to me . . .
(emphasis added).
While our Supreme Court has held that defendant’s question “Um, Can I call
my mom?” was not sufficient to clearly invoke his statutory right to have his mother
present, see Saldierna, ___ N.C. at ___, 794 S.E.2d at 475, this transcript nevertheless
contains several “[unintelligible]” remarks or non-responses by defendant, mostly
used to indicate defendant’s “answers” to Detective Kelly’s questions regarding
whether or not he understood his statutory and constitutional rights. Cf. Fare v.
Michael C., 442 U.S. 707, 726–27, 61 L. Ed. 2d 197, 213 (1979) (concluding that a 16
½-year-old juvenile “voluntarily and knowingly waived his Fifth Amendment rights”
where “[t]here [was] no indication in the record that [the juvenile] failed to
understand what the officers told him[,]” “no special factors indicate[d] that [the
juvenile] was unable to understand the nature of his actions[,]” and the juvenile had
“considerable experience with the police”). But see N.C.G.S. § 7B-2101(c) (“If the
juvenile indicates in any manner and at any stage of questioning pursuant to this
section that the juvenile does not wish to be questioned further, the officer shall cease
questioning.”).
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Opinion of the Court
Although decided almost twenty years before In re Gault, and with much more
egregious facts regarding the coercion of a confession from a juvenile, the United
States Supreme Court in Haley v. State of Ohio, reasoned as follows:
The age of petitioner, the hours when he was grilled,
the duration of his quizzing, the fact that he had no friend
or counsel to advise him, the callous attitude of the police
towards his rights combine to convince us that this was a
confession wrung from a child by means which the law
should not sanction. Neither man nor child can be allowed
to stand condemned by methods which flout constitutional
requirements of due process of law.
But we are told that this boy was advised of his
constitutional rights before he signed the confession and
that, knowing them, he nevertheless confessed.[8] That
assumes, however, that a boy of fifteen, without aid of
counsel, would have a full appreciation of that advice and
that on the facts of this record he had a freedom of choice.
We cannot indulge those assumptions. Moreover, we cannot
give any weight to recitals which merely formalize
constitutional requirements. Formulas of respect for
constitutional safeguards cannot prevail over the facts of
life which contradict them. They may not become a cloak
for inquisitorial practices and make an empty form of the
due process of law for which free men fought and died to
obtain.
332 U.S. 596, 600–01, 92 L. Ed. 224, 229 (1948) (emphasis added) (reversing a fifteen-
year-old boy’s conviction for murder where his confession was obtained after a five-
8By stating “we are told that this boy was advised of his constitutional rights before he signed
the confession,” Haley, 332 U.S. at 601, 92 L. Ed. at 229, the Supreme Court was acknowledging that
contrary to the police officers’ testimony otherwise, the juvenile was not, in fact, advised of his right to
counsel at any time, but was only given a typed version of his confession to sign, which included
language at the beginning purporting to advise the juvenile of his “constitutional rights.” Id. at 598,
92 L. Ed. at 228.
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hour-long interrogation, which began at midnight, and where the boy was not advised
of his rights and was not permitted to have counsel or a parent or family member
present).
“The totality of the circumstances must be carefully scrutinized when
determining if a youthful defendant has legitimately waived his Miranda rights.”
State v. Reid, 335 N.C. 647, 663, 440 S.E.2d 776, 785 (1994) (emphasis added) (citing
State v. Fincher, 309 N.C. 1, 19, 305 S.E.2d 685, 697 (1983)). The circumstances to
consider in determining whether a wavier is voluntary (knowingly, willingly, and
understandingly made) “includ[e] the background, experience, and conduct of the
accused.” See Simpson, 314 N.C. at 367, 334 S.E.2d at 59 (citation omitted).
In the instant case, there is no indication that defendant had any familiarity
with the criminal justice system. Unlike the defendant in Fare v. Michael C., there
is no indication of “considerable experience with the police,” 442 U.S. at 726, 61 L.
Ed. 2d at 213, and, unlike in Fare, there are factors in the record in the instant case
which indicate defendant did not fully understand (or might not have fully
understood) Detective Kelly’s questions such that he freely and intelligently waived
his rights. See id.; cf. Gallegos v. Colorado, 370 U.S. 49, 54, 8 L. Ed. 2d 325, 328
(1962) (“The prosecution says that the boy was advised of his right to counsel, but
that he did not ask either for a lawyer or for his parents. But a 14-year-old boy, no
matter how sophisticated, is unlikely to have any conception of what will confront him
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Opinion of the Court
when he is made accessible only to the police. That is to say, we deal with a person
who is not equal to the police in knowledge and understanding of the consequences of
the questions and answers being recorded and who is unable to know how to protect
his own interests or how to get the benefits of his constitutional rights.” (emphasis
added)). Because the evidence does not support the trial court’s findings of fact in the
instant case that defendant “understood” Detective’s Kelly’s questions and
statements regarding his rights, we conclude that he did not “legitimately waive[] his
Miranda rights.” See Fare, 442 U.S. at 726–27, 61 L. Ed. 2d at 213. As a result, we
decline to “give any weight to recitals,” like the juvenile rights waiver form signed by
defendant, “which merely formalize[d] constitutional requirements.” Haley, at 601,
92 L. Ed. at 229; see also Simpson, 314 N.C. at 367, 334 S.E.2d at 59.
To be valid, a waiver should be voluntary, not just on its face, i.e., the paper it
is written on, but in fact. It should be unequivocal and unassailable when the subject
is a juvenile. The fact that the North Carolina legislature recently raised the age that
juveniles can be questioned without the presence of a parent from age fourteen to age
sixteen is evidence the legislature acknowledges juveniles’ inability to fully and
voluntarily waive essential constitutional and statutory rights.9 Here, despite the
trial court’s many findings of fact that defendant “indicated he understood” Detective
Kelly’s questions and statements regarding his rights, the evidence as recorded
9 See supra note 3.
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Opinion of the Court
contemporaneously during the questioning and as noted in testimony from the
hearing, does not support those findings. Further, the findings do not reflect the
scrutiny that a trial court is required to give in juvenile cases. At the very least, the
evidence supporting the findings made by the trial court in the instant case was not
substantial under the totality of the circumstances. See Reid, 335 N.C. at 663, 440
S.E.2d at 785.
Indeed, during voir dire and in response to the question “Did [defendant] also
state that he might have some issues understanding English as it is spoken as well?”
Detective Kelly answered, “I believe he did.” Detective Kelly also testified that
defendant told her “he wasn’t very good at reading English.” Thus, even if defendant
did sign the English version of the Juvenile Waiver of Rights form, the evidence in
the record simply does not fully support that defendant knew or understood the
implications of what he was signing when he was signing it. See Simpson, 314 N.C.
at 367, 334 S.E.2d at 59 (“[A]n express written waiver, while strong proof of the
validity of the waiver, is not inevitably sufficient to establish a valid waiver.” (citation
omitted)).
Furthermore, when Detective Kelly tells defendant “I am signing my name
below,” she then asks, “Do you understand this? Initial, sign, date and time,”
presumably instructing defendant to initial, sign, and date the English version of the
form, which he does. But no response is recorded that he “understood” what was
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Opinion of the Court
being asked by Detective Kelly—indeed, the next intelligible utterance made by
defendant is “Um, can I call my mom now?” In fact, no copy of the Spanish version of
the Juvenile Waiver of Rights form, purportedly given to defendant
contemporaneously with the English version which he signed, exists in the record;
defendant was instructed to initial the English version of the form, which is in the
record. Thus, Finding of Fact No. 4—“[t]hat [d]efendant was advised of his juvenile
rights . . . in written Spanish,” is not supported by competent documentary evidence
in the record. Accordingly, despite defendant’s “express written waiver,” see id., the
evidence does not support the trial court’s ultimate conclusion that defendant
executed a valid waiver.
In addition, before beginning her questioning of defendant about multiple
felony charges, Detective Kelly said, “This is not something that is going to end your
life. You know what I am saying? This is not a huge deal[.]” Arguably, this statement
mischaracterized the gravity of the situation in an attempt to extract information
from a juvenile defendant.
Although there may be no duty for an interrogating official to explain a
defendant’s juvenile rights in any greater detail than what is required by statute, see
Flowers, 128 N.C. App. at 700, 497 S.E.2d at 97, “[i]t is well established that juveniles
differ from adults in significant ways and that these differences are especially
relevant in the context of custodial interrogation.” Saldierna, ___ N.C. at ___, 794
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Opinion of the Court
S.E.2d at 483 (Beasley, J., dissenting) (citations omitted). Such a mischaracterization
by an interrogating official, then, surely cuts squarely against our legislature’s “well-
founded policy of special protections for juveniles,” especially where, as here, nothing
in the record indicates that defendant had any prior experience with law enforcement
officers such that he would have been aware of criminal procedure generally or the
consequences of speaking with the police. Cf. Fare, 442 U.S. at 726–27, 61 L. Ed. at
213 (concluding that a 16½-year-old juvenile “voluntarily and knowingly waived his
Fifth Amendment rights” where, inter alia, the juvenile had “considerable experience
with the police”); Simpson, 314 N.C. at 367, 334 S.E.2d at 59 (considering the
“background” and “experience” of the accused in determining the voluntariness of
waiver); see also Cara A. Gardner, Failing to Serve and Protect: A Proposal for an
Amendment to a Juvenile’s Right to a Parent, Guardian, or Custodian During a Police
Interrogation After State v. Oglesby, 86 N.C. L. Rev. 1685, 1698 (2008) (“[The] policy
of special protection [for juvenile defendants] is well-founded because of juveniles’
unique vulnerabilities. Juveniles are uniquely vulnerable for two reasons: (1) they
are less likely than adults to understand their rights; and (2) they are distinctly
susceptible to police interrogation techniques.” (emphasis added)).
Generally, we accept that the trial court resolves conflicts in the evidence and
weighs the credibility of evidence and witnesses. See State v. O’Connor, 222 N.C.
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Opinion of the Court
App. 235, 241, 730 S.E.2d 248, 252 (2012). However, as we have noted, juvenile cases
require special attention. See Reid, 335 N.C. at 663, 440 S.E.2d at 785.
Our Supreme Court has determined that this juvenile’s request to call his
mother after signing a waiver form was not an invocation of his right to have a parent
present. Saldierna, ___ N.C. at ___, 794 S.E.2d at 475. However, defendant’s act of
requesting to call his mother immediately after he ostensibly executed a form stating
he was giving up his rights, including his right to have a parent present, shows
enough uncertainty, enough anxiety on the juvenile’s behalf, so as to call into question
whether, under all the circumstances present in this case, the waiver was
(unequivocally) valid.
Here, the waiver was signed in English only, and defendant’s unintelligible
answers to questions such as, “Do you understand these rights?” do not show a clear
understanding and a voluntary waiver of those rights.10 Defendant stated firmly to
the officer that he wanted to call his mother, even after the officer asked
(unnecessarily), “Now, before you talk to us?” Further, defendant reiterated this
desire, even in spite of the officer’s aside to other officers in the room: “He wants to
call his mom.” Such actions would show a reasonable person that this juvenile
defendant did not knowingly, willingly, and understandingly waive his rights.
Rather, his last ditch effort to call his mother (for help), after his prior attempt to call
10 See supra notes 6 and 7 and accompanying text.
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Opinion of the Court
her had been unsuccessful, was a strong indication that he did not want to waive his
rights at all. Yet, after a second unsuccessful attempt to reach his working parent
failed, this juvenile, who had just turned sixteen years old, probably felt that he had
no choice but to talk to the officers. It appears, based on this record, that defendant
did not realize he had the choice to refuse to waive his rights, as the actions he took
were not consistent with a voluntary waiver. As a result, any “choice” defendant had
to waive or not waive his rights is meaningless where the record does not indicate
that defendant truly understood that he had a choice at all.
Furthermore, the totality of the circumstances set forth in this record
ultimately do not fully support the trial court’s conclusions of law, namely, “[t]hat the
State carried its burden by a preponderance of the evidence that [d]efendant
knowingly, willingly, and understandingly waived his juvenile rights.” See Ortiz-
Zape, 367 N.C. at 5, 743 S.E.2d at 159 (citing Biber, 365 N.C. at 168, 712 S.E.3d at
878) (“[C]onclusions of law are reviewed de novo and are subject to full review.”).
Here, too much evidence contradicts the English language written waiver signed by
defendant, which, in any event, is merely a “recital” of defendant’s purported decision
to waive his rights. See Haley, 332 U.S. at 601, 92 L. Ed. 2d at 229 (“[W]e cannot give
any weight to recitals which merely formalize constitutional requirements.”).
Accordingly, it should not be considered as significant evidence of a valid waiver. See
Simpson, 314 N.C. at 367, 334 S.E.2d at 59 (“[A]n express written waiver, while
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Opinion of the Court
strong proof of the validity of the waiver, is not inevitably sufficient to establish a
valid waiver.” (emphasis added) (citation omitted)).
“Our criminal justice system recognizes that [juveniles’] immaturity and
vulnerability sometimes warrant protections well beyond those afforded adults. It is
primarily for that reason that a separate juvenile code with separate juvenile
procedures exists.” In re Stallings, 318 N.C. 565, 576, 350 S.E.2d 327, 333 (1986)
(Martin, J., dissenting). Indeed, “at least two empirical studies show that the vast
majority of juveniles are simply incapable of understanding their Miranda rights and
the meaning of waiving those rights.” Oglesby, 361 N.C. at 559 n.3, 648 S.E.2d at 824
n.3 (Timmons-Goodson, J., dissenting) (emphasis added) (citation omitted).
Even for an adult, the physical and psychological isolation
of custodial interrogation can undermine the individual’s
will to resist and . . . compel him to speak where he would
not otherwise do so freely. Indeed, the pressure of custodial
interrogation is so immense that it can induce a
frighteningly high percentage of people to confess to crimes
they never committed. That risk is all the more troubling—
and recent studies suggest, all the more acute—when the
subject of custodial interrogation is a juvenile.
J.D.B. v. North Carolina, 564 U.S. 261, 269, 180 L. Ed. 2d 310, 321 (2011) (alteration
in original) (internal citations omitted).
In conclusion, based on the totality of the circumstances, we hold the trial court
erred in concluding that defendant knowingly, willingly, and understandingly waived
his statutory and constitutional rights, and therefore, the trial court erred in denying
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Opinion of the Court
defendant’s motion to suppress. Accordingly, we reverse the order of the trial court,
vacate the judgments entered upon defendant’s guilty pleas, and remand to the trial
court with instructions to grant the motion to suppress and for any further
proceedings it deems necessary.
VACATED, REVERSED, AND REMANDED.
Chief Judge MCGEE and Judge DIETZ concur.
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