In Re Ewing

350 S.E.2d 887 (1986) 83 N.C. App. 535

In re Julius Devon EWING a juvenile.

No. 8614DC688.

Court of Appeals of North Carolina.

December 16, 1986.

Atty. Gen. Lucy H. Thornburg by Asst. Atty. Gen., Jane Rankin Thompson, Raleigh, for the State.

Fowler & Baldasare by Thomas L. Fowler, Research Triangle Park, for respondent.

EAGLES, Judge.

Respondent contends that the trial court erred in failing to suppress the inculpatory statement made by him during custodial interrogation. We agree.

G.S. 7A-595 governs the procedures which must be followed when a juvenile is interrogated. G.S. 7A-595(d) provides:

Before admitting any statement resulting from custodial interrogation into evidence, the judge must find that the juvenile knowingly, willingly, and understandingly waived his rights.

Clearly the statute requires the trial court to find as a fact that the juvenile knowingly, willingly, and understandingly waived his juvenile rights prior to admitting any statement made by the juvenile during a custodial interrogation. In re Riley, 61 N.C.App. 749, 301 S.E.2d 750 (1983).

Here, the trial court found as facts:

[T]hat these rights were explained in detail to the juvenile in his mother's presence and that his mother understood these rights and had each and every one of them read and explained to her as well as to the juvenile and the Court, in the area of juvenile law, has to be guided not only by the general principles of the constitutional law but has to look specifically at the statutory scheme for juveniles and often our appellate courts have said that we have to look to the specific statutory language and it appears that, and the Court finds and rules that the statutory scheme is designed to protect the rights of the juvenile; that the purpose of having parents available with juveniles when they're questioned by law enforcement personnel is to be sure that the parent is advised as well as the juvenile of these rights. It's not necessary in this court's mind that the juvenile totally understand each and every legal term involved with these rights. That in addition to having these rights explained to the juvenile, they're explained to the parents as well so that the parent understands and can acquiesce on behalf of the juvenile in terms of understanding the procedures. And it appears that the mother was specifically involved in this process; that she was there when each and every one of these rights were explained and she understood that these questions were for the purpose of determining this young's man's involvement, if any, with the episode and that she, on behalf of her son, waived these rights; that is, waived any right against self-incrimination and acquiesced in allowing the police officer to examine this young man and that she did so freely, understandingly, knowingly understanding what the process was....

These findings do not meet the requirements of G.S. 7A-595(d). In particular, the finding that respondent's mother freely, understandingly, and knowingly waived respondent's juvenile rights is not equivalent to a finding that respondent knowingly and understandingly waived his rights. Furthermore, "a parent, guardian, or custodian may not waive any right on behalf of the juvenile." G.S. 7A-595(b) (emphasis added). Accordingly, we hold that the trial court erred in admitting respondent's inculpatory statement without first finding that he knowingly, willingly and understandingly waived his juvenile rights.

We note also that the trial court failed to affirmatively state that the allegations of the juvenile petition were proved beyond a reasonable doubt as required by G.S. 7A-635 and -637. In re Wade, 67 N.C.App. 708, 313 S.E.2d 862 (1984). In re Johnson, 32 N.C.App. 492, 232 S.E.2d 486 (1977). Failure to follow the statutory mandate is error. In re Wade, supra, 67 N.C.App. at 711, 313 S.E.2d 864.

Reversed and remanded.

BECTON and PHILLIPS, JJ., concur.