               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 57PA17

                              Filed 21 December 2018

STATE OF NORTH CAROLINA

              v.
BOBBY JOHNSON



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 625 (2017), finding no

prejudicial error after appeal from a judgment entered on 6 October 2015 by Judge

Eric L. Levinson in Superior Court, Mecklenburg County. On 3 May 2017, the

Supreme Court allowed defendant’s conditional petition for discretionary review as

to an additional issue. Heard in the Supreme Court on 8 January 2018.


      Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy
      Attorney General, for the State-appellant/appellee.

      Marilyn G. Ozer for defendant-appellant/appellee.



      BEASLEY, Justice.

      The Court of Appeals concluded that defendant’s inculpatory statements to law

enforcement were given under the influence of fear or hope caused by the

interrogating officers’ statements and actions and were therefore involuntarily made.

State v. Johnson, ___ N.C. App. ___, ___, 795 S.E.2d 625, 639-40 (2017).         The

unanimous Court of Appeals panel held that the confession should have been
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                                  Opinion of the Court



suppressed but concluded the error was harmless beyond a reasonable doubt due to

the overwhelming evidence of defendant’s guilt. Id. at ___, 795 S.E.2d at 641. For

the reasons stated below, we uphold the trial court’s conclusion that, under the

totality of the circumstances, defendant’s inculpatory statements were voluntary.

Therefore, we modify and affirm the decision of the Court of Appeals.

                                   Background

      In the early morning hours of 2 May 2007, three men robbed a Charlotte motel

where the victim, Anita Jean Rychlik, worked as manager and her husband worked

as a security guard. After pistol whipping and robbing the security guard in the

parking lot, two of the men entered the victim’s room, where the victim was shot once

in the back of her neck and killed. The men escaped, and no one was charged in the

murder until October 2011.      DNA evidence collected from beneath the victim’s

fingernails and analyzed in 2009 indicated defendant was the likely contributor.

      Defendant voluntarily met with detectives on 24 October 2011 at the police

station, where he was questioned in an interview room for just under five hours before

being placed under arrest and warned of his rights as required by Miranda v. Arizona,

384 U.S. 436, 16 L. Ed. 2d 694 (1966). After being advised of his rights, defendant

signed a written waiver of those rights and made inculpatory statements. Defendant

was indicted on 7 November 2011 for first-degree murder for the killing of Rychlik.

      Defendant was tried before Judge Eric L. Levinson at the 28 September 2015

criminal session of Superior Court, Mecklenburg County. On 6 October 2015, a jury

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found defendant guilty of first-degree murder under the felony murder rule with

armed robbery as the underlying felony. That same day, the trial court sentenced

defendant to life imprisonment without parole.

      Defendant made a number of pretrial motions, including a motion to suppress

statements he made to law enforcement while being interrogated on 24 October 2011.

Defendant argued that he was subjected to custodial interrogation before being

informed of his rights as required by Miranda, and that his inculpatory statements

were made in response to improper statements by detectives inducing a hope that his

confession would benefit him.      The trial court denied the motion to suppress,

concluding that “[b]ased on the totality of the circumstances during the entirety of

the interview, the statements made by Defendant were voluntary.”

      Defendant appealed his conviction to the Court of Appeals, arguing that the

trial court’s findings of fact “seem[ed] to intentionally downplay the influence of hope

and fear” during his interrogation and were insufficient to support its conclusion that

the Miranda warnings in this case were effective under Missouri v. Seibert, 542 U.S.

600, 159 L. Ed. 2d 643 (2004). The Court of Appeals panel determined that defendant

was subject to custodial interrogation before being Mirandized and then analyzed

whether the entirety of the interrogation, from the time defendant first should have

been advised of his rights under Miranda until the time defendant made inculpatory

statements, rendered those statements involuntary. Johnson, ___ N.C. App. at ___,

795 S.E.2d at 638-39.


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        The Court of Appeals concluded that the detectives used the “question first,

warn later” technique held invalid in Seibert, but that defendant did not make

inculpatory statements prior to being advised of his rights as required by Miranda.

Id. at ___, 795 S.E.2d at 637-38. Because of that distinction, the Court of Appeals did

not determine whether the postwarning statement should have been suppressed

under Miranda and Seibert, and instead analyzed the overall voluntariness of the

statements. Id. at ___, 795 S.E.2d at 637-38. The Court of Appeals held that the

circumstances under which defendant made inculpatory statements were at least as

coercive as those at issue in State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975), and

therefore, any statements given were involuntary and inadmissible. Johnson, ___

N.C. App. at ___, 795 S.E.2d at 638. Despite its conclusion that the statements should

have been suppressed, the panel determined that admission of defendant’s

statements was harmless beyond a reasonable doubt due to the overwhelming

additional evidence of defendant’s guilt, including DNA evidence, eyewitness

testimony, and accomplice testimony. Id. at ___, 795 S.E.2d at 640-41. This Court

allowed both the State’s and defendant’s petitions for discretionary review on 3 May

2017.

                                       Analysis

                                I. – Standard of Review

        We evaluate a trial court’s denial of a motion to suppress evidence to determine

“whether competent evidence supports the trial court’s findings of fact and whether


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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)). If the trial court’s findings of fact are supported by competent

evidence, they “are conclusive on appeal, . . . even if the evidence is conflicting.” State

v. Hammonds, 370 N.C. 158, 161, 804 S.E.2d 438, 441 (2017) (quoting State v.

Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)). Conclusions of law,

however, “are fully reviewable on appeal” and “must be legally correct, reflecting a

correct application of applicable legal principles to the facts found.” Id. at 161, 804

S.E.2d at 441 (first citing State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737

(1992); then quoting Buchanan, 353 N.C. at 336, 543 S.E.2d at 826).

      Determinations regarding the voluntariness of a defendant’s waiver of his

Miranda rights or the voluntariness of incriminating statements made during the

course of interrogation are conclusions of law, which we review de novo. State v.

Knight, 369 N.C. 640, 646, 799 S.E.2d 603, 608 (2017) (citation omitted); State v.

Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (citation omitted).

                           II. – Voluntariness and Miranda

      At common law a confession obtained through inducements, promises, or

threats of violence lacked the presumption of reliability ordinarily afforded such

statements, and therefore, was not admissible at trial. State v. Roberts, 12 N.C. (1

Dev.) 259, 260 (1827) (per curiam) (declining to allow admission of a confession when

“the defendant ha[d] been influenced by any threat or promise”); cf. Hopt v. Utah, 110


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U.S. 574, 585, 28 L. Ed. 262, 267 (1884) (holding a confession admissible when not

made as a result of inducements, threats, or promises preying on the “fears or hopes

of the accused”).   In short, “coerced confessions are inherently untrustworthy.”

Dickerson v. United States, 530 U.S. 428, 433, 147 L. Ed. 2d 405, 412 (2000) (citations

omitted).

      Compliance with Miranda is a threshold requirement for admissibility of such

statements when made as a result of custodial interrogation and does not abrogate

the need for confessions to be obtained in compliance with traditional notions of due

process under both the federal and state constitutions. Seibert, 542 U.S. at 617 n.8,

159 L. Ed. 2d at 658 n.8 (plurality opinion) (declining to “assess the actual

voluntariness of the statement” where Miranda warnings were inadequate); New

York v. Quarles, 467 U.S. 649, 655 n.5, 81 L. Ed. 2d 550, 556 n.5 (1984) (noting that

“failure to provide Miranda warnings in and of itself does not render a confession

involuntary” and suggesting the defendant was “free on remand to argue that his

statement was coerced under traditional due process standards”). “ ‘[T]he mere fact

that a suspect has made an unwarned admission does not warrant a presumption of

compulsion’ as to any subsequent, warned statement.” United States v. Mashburn,

406 F.3d 303, 307 (4th Cir. 2005) (quoting Oregon v. Elstad, 470 U.S. 298, 314, 84 L.

Ed. 2d 222, 235 (1985)).      And conversely, compliance with Miranda does not

necessarily raise a presumption of voluntariness.        Consequently, even when a

defendant’s Miranda rights are respected, and even when those rights are


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voluntarily, knowingly, and intelligently waived, the confession itself must also be

voluntary under traditional notions of due process. “If, looking to the totality of the

circumstances, the confession is ‘the product of an essentially free and unconstrained

choice by its maker,’ then ‘he has willed to confess [and] it may be used against him;’

where, however ‘his will has been overborne and his capacity for self-determination

critically impaired, the use of his confession offends due process.’ ” Hardy, 339 N.C.

at 222, 451 S.E.2d at 608 (alteration in original) (quoting Schneckloth v. Bustamonte,

412 U.S. 218, 225-26, 36 L. Ed. 2d 854, 862 (1973)).

      Whether the defendant’s rights under Miranda and its progeny have been

respected is a factor to be considered when assessing the overall voluntariness of a

defendant’s confession. See, e.g., id. at 222, 451 S.E.2d at 608 (listing compliance with

Miranda as a factor to be considered in the voluntariness inquiry). Consequently,

assessing the admissibility of a statement given in response to police questioning

requires an assessment of both compliance with Miranda and the overall

voluntariness of the statement. We agree with the State that the Court of Appeals

erred by compressing these steps to analyze voluntariness alone. Johnson, ___ N.C.

App. at ___, 795 S.E.2d at 634. Compliance with Miranda is a factor to be considered

when evaluating voluntariness in light of the totality of the circumstances under

which the statement was given. Whether the State has complied with Miranda

necessarily involves a determination whether the person being interviewed was

subjected to custodial interrogation, which is itself a totality of the circumstances


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analysis. While these two analyses will require the Court to examine interrelated

and overlapping facts, one is not a replacement for the other. Likewise, determining

whether a defendant has voluntarily waived his rights under Miranda does not

abrogate the need to evaluate the voluntariness of the statement itself.

                 III. – Compliance with Miranda in light of Seibert

      “Miranda warnings are required only where there has been such a restriction

on a person’s freedom as to render him ‘in custody.’ ” Oregon v. Mathiason, 429 U.S.

492, 495, 50 L. Ed. 2d 714, 719 (1977) (per curiam). There is no question that

defendant was read the Miranda warnings when he was formally placed under arrest

and that he signed a form acknowledging his waiver of those rights. The parties

disagree, however, as to whether those warnings, when given, were sufficient to

comply with Miranda in light of the United States Supreme Court’s decision in

Seibert, 542 U.S. at 600, 159 L. Ed. 2d at 643. Defendant relies on Seibert to argue

that the officers’ use of the “question first, warn later” method of interrogation

violated Miranda.     The State argues that there is no evidence that officers

intentionally used the “question first, warn later” technique at issue in Seibert, and

therefore, this case is distinguishable and should be analyzed instead under the

rationale of Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222 (1985). We do not find

the reasoning of Elstad distinguishable from Seibert in this way. Rather, the two

cases stand for the same proposition: Miranda warnings must be given in a manner

that meaningfully apprises the interviewee of his choice to give an admissible

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statement or stop talking before he is taken into custody and questioned.

      In Seibert, the officer testified that he purposefully did not place the defendant

under arrest until after he had questioned her for some time and she had fully

confessed. Seibert, 542 U.S. at 604-07, 159 L. Ed. 2d at 650-51. By doing so, he was

able to secure a confession without apprising the defendant of her constitutional

rights as required by Miranda. Id. at 604-07, 159 L. Ed. 2d at 651. He then gave the

obligatory warnings, confronted her with her prewarning statements, and repeated

the questions to confirm what had already been said. Id. at 605, 159 L. Ed. 2d at 650-

51. According to the Court, the manifest purpose of this interrogation technique was

to obtain “a confession the suspect would not make if he understood his rights at the

outset,” thereby intentionally circumventing Miranda and undermining the purposes

it sought to serve—combatting interrogation tactics designed to trick, pressure, or

coerce a suspect into incriminating himself without knowing or understanding he had

the right not to do so. Id. at 613, 159 L. Ed. 2d at 655. The Court explained that the

practice of administering Miranda warnings in the midst of coordinated and

continuing interrogation undermines the defendant’s ability to knowingly and

intelligently waive the right to remain silent by placing him in a state of confusion as

to why his rights are being discussed after he has been interrogated. Id. at 613-14,

159 L. Ed. 2d at 656. Doing so is “likely to mislead and ‘depriv[e] a defendant of

knowledge essential to his ability to understand the nature of his rights and the

consequences of abandoning them.’ ” Id. at 613-14, 159 L. Ed. 2d at 656 (alteration in


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original) (quoting Moran v. Burbine, 475 U.S. 412, 424, 89 L. Ed. 410, 422 (1986)).

      The prewarning statement at issue in Elstad, on the other hand, was not made

in a station house interrogation but rather in the defendant’s home where officers

had come to execute an arrest warrant. Id. at 300-01, 84 L. Ed. 2d at 226-27. The

officers allowed the defendant to get dressed before placing him under arrest and

taking him to the sheriff’s department for interrogation, where the defendant was

read the Miranda warnings before being questioned. Id. at 300-01, 84 L. Ed. 2d at

226-27. The defendant’s initial statements were made in casual conversation with

an officer in the defendant’s own home, while his subsequent statements were made

after being transported to the police station in a patrol car and placed in an

interrogation room for questioning.        The Court concluded that, under such

circumstances, “a subsequent administration of Miranda warnings . . . should suffice

to remove the conditions that precluded admission of the earlier statement,” id. at

314, 84 L. Ed. 2d at 235; those “conditions” being his lack of information essential to

understanding the nature of his rights and the consequences of abandoning them.

Consequently, under both Elstad and Seibert, the question for a reviewing court

remains whether, under the totality of the circumstances, the warnings so given could

function effectively to apprise the suspect that he had a real choice to either give an

admissible statement or stop talking.

      The Court of Appeals here “agree[d] that the detectives in the present case

used the same objectionable technique considered in Seibert,” but held that because

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defendant “did not confess until after he was given his Miranda warnings,” the court

needed only to determine whether his statements were involuntary. Johnson, ___

N.C. App. at ___, 795 S.E.2d at 637-38. This was error. When a defendant asserts

that his or her Miranda rights have been violated as a result of successive rounds of

custodial interrogation, some portion of which was unwarned, the question for the

court is whether the warnings effectively apprised him of his rights and whether he

made a voluntary, knowing, and intelligent waiver of his right to remain silent.

Whether a defendant made prewarning inculpatory statements may be a factor that

affects that analysis, but it does not change the nature of the question to be asked.

      While defendant has argued vigorously on appeal that his Miranda rights were

violated by the officers’ use of the “question first” technique, he did not make that

argument to the trial court. He did not assert to the trial court that his postwarning

statements suffered from the same constitutional infirmity as any prewarning

statements, because there were no such inadmissible prewarning statements upon

which he could base such an argument. Rather, he argued that the totality of his

interaction with officers was involuntary because of the substance of his unwarned

conversations with officers that morning. Although his motion to suppress includes

an assertion that the officers “initially . . . did not ascertain that he knowingly and

voluntarily waived his rights to remain silent,” he did not argue that the waiver of

his rights under Miranda in the afternoon was not voluntary, knowing, and

intelligent, nor that he did not understand his right to remain silent at the time he


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was Mirandized; only that officers should have obtained the waiver earlier in the

day.1 In fact, he conceded to the trial court that “the technical requirements of

Miranda may have been met,” but contended that his statement should have been

suppressed nonetheless because it was involuntary.

       The trial court found as fact that the waiver forms introduced into evidence by

the State “accurately reflect[ed] the required Miranda warnings.”                        This

determination is supported by competent evidence in the record and has not been

challenged by defendant. Consequently, it is binding on appeal. Having made an

appropriate waiver of his rights under Miranda, the finding supports the trial court’s

conclusion that “[t]he requirements of Miranda were satisfied.” We therefore proceed

to defendant’s claim that his statements were involuntary.

                                        IV. - Voluntariness

       Although defendant does not argue that his postwarning statements failed to

comply with Miranda, he does argue that they were involuntarily procured as a result

of the statements made by officers during the first “round” of interrogation before he

was Mirandized.       Defendant contends that the officers’ statements            improperly



       1  Because defendant did not seek to suppress any statements made to officers during
the first several hours of his interrogation, before he was formally arrested and Mirandized,
and in light of defendant’s concession that “the technical requirements of Miranda may have
been met,” we do not find it necessary to determine whether he was “in custody” for purposes
of Miranda before he was formally arrested. This position, taken at the hearing on the motion
to suppress, appears to conflict with the motion itself which stated that “[u]se of Defendant’s
statement would be in violation of Fifth, Sixth and Fourteenth Amendment rights . . . under
case law of the United States Supreme Court, Miranda v. Arizona, and its progeny.”

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induced hope that his confession would benefit him. His motion to suppress cites

State v. Pruitt for the proposition that “a confession obtained by the slightest emotions

of hope or fear ought to be rejected.” 286 N.C. at 455, 212 S.E.2d at 101. The State

argues that both defendant’s and the Court of Appeals’ reliance on Pruitt is misplaced

because, in the State’s view, the “per se” voluntariness analysis in that case and its

predecessors has been circumscribed by our more recent decisions that favor a totality

of the circumstances analysis of the voluntariness of a confession. The Court of

Appeals quoted Pruitt extensively and ultimately determined that “the circumstances

in the present case were at least as coercive as those in Pruitt” and therefore held

“that Defendant’s inculpatory statements ‘were made under the influence of fear or

hope, or both, growing out of the language and acts of those who held him in

custody.’ ” Johnson, ___ N.C. App. at ___, 795 S.E.2d at 639-40 (quoting Pruitt, 286

N.C. at 458, 212 S.E.2d at 103). We hold that the trial court’s conclusion that

defendant’s inculpatory statements were voluntarily made was adequately supported

by its findings of fact and that those findings are supported by competent evidence in

the record. We therefore modify and affirm the decision of the Court of Appeals.

      We assess the voluntariness of a confession by determining whether, under the

“totality of the circumstances, the confession is ‘the product of an essentially free and

unconstrained choice by its maker,’ ” in which case it is admissible against him, or

conversely, whether “ ‘his will has been overborne and his capacity for self-

determination critically impaired,’ ” in which case “ ‘the use of his confession offends


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due process.’ ” Hardy, 339 N.C. at 222, 451 S.E.2d at 608 (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225-26, 36 L. Ed. 2d 854, 862 (1973)). In addition to

considering whether the defendant’s rights under Miranda have been heeded, when

conducting this review of the totality of the circumstances, the Court should also

consider: (1) circumstances under which the interrogation was conducted, for

example the location, the presence or absence of restraints, and the suspect’s

opportunity to communicate with family or an attorney; (2) treatment of the suspect,

for example the duration of the session or consecutive sessions, availability of food

and drink, opportunity to take breaks or use restroom facilities, and the use of actual

physical violence or psychologically strenuous interrogation tactics; (3) appearance

and demeanor of the officers, for example whether they were uniformed, whether

weapons were displayed, and whether they used raised voices or made shows of

violence; (4) statements made by the officers, including threats or promises or

attempts to coerce a confession through trickery or deception; and (5) characteristics

of the defendant himself, including his age, mental condition, familiarity with the

criminal justice system, and demeanor during questioning.2 None of these factors



       2 See, e.g., State v. Kemmerlin, 356 N.C. 446, 458, 573 S.E.2d 870, 881 (2002) (citing,
inter alia, State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000), cert. denied, 531 U.S.
1114, 148 L. Ed. 2d 775 (2001)) (listing factors, including “whether defendant was in custody,
whether her Miranda rights were violated, whether she was held incommunicado, whether
there were threats of violence, whether promises were made to obtain the confession, the age
and mental condition of defendant, and whether defendant had been deprived of food,” as
well as the “defendant’s familiarity with the criminal justice system, length of interrogation,
and amount of time without sleep”); Hardy, 339 N.C. at 221-22, 451 S.E.2d at 607-08 (listing
same factors and additionally considering the environment and duration of the interview;

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standing alone will necessarily be dispositive, State v. Kemmerlin, 356 N.C. 446, 458,

573 S.E.2d 870, 881 (2002) (citing State v. Barlow, 330 N.C. 133, 141, 409 S.E.2d 906,

911 (1991)), and the court is certainly free to look to a host of other facts and

circumstances surrounding the act of confessing to determine whether, under the

totality of the circumstances, the defendant was truly capable of making, and did in

fact make, a free and rational decision to confess his guilt.

       In this case the trial court’s findings of fact indicate that defendant came to the

police department headquarters on his own without police escort, was not shackled

or handcuffed,3 and retained possession of his personal cell phone while inside the

interview room. Defendant was placed in an interview room with two plainclothes

police officers on the second floor of a secure law enforcement facility. At one point,

his cell phone rang and it appears from the record that officers would have allowed

him to answer had he chosen to do so. Officers made no threats of physical violence

but did interrogate defendant rigorously and raised their voices. Defendant was told,



demeanor and characteristics of the interviewee; officers’ civilian dress, lack of weapons, and
demeanor; and subjective belief of the defendant, including whether he asked to leave,
requested an attorney, felt he was free to leave, and believed what officers were telling him);
State v. Jackson, 308 N.C. 549, 573-74, 304 S.E.2d 134, 147-48 (1983) (finding the defendant’s
statement voluntary even though officers fabricated evidence because the defendant: was
not in custody; was Mirandized; was not threatened, touched, or intimidated; was driven by
officers to his chosen destination at the conclusion of the first interview; and had extensive
experience with interrogation), overruled on other grounds as stated in State v. Abbott, 320
N.C. 475, 481, 358 S.E.2d 365, 369 (1987).
        3 The Court of Appeals recited as fact that defendant was made to shackle himself to

the floor of the interrogation room after he was placed under arrest, four and one-half hours
after questioning began. Defendant has not challenged the trial court’s finding that he was
not shackled or handcuffed and that finding is therefore binding on appeal.

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contradictorily and repeatedly, that officers both could not promise him anything and

that the district attorney would “work with him” and would “go easier on him” if he

cooperated and gave them truthful information.          After a lengthy interrogation,

officers asked whether defendant believed he would be able to go home that day and

defendant responded, “No.” The following conversation ensued:

                   Officer 1:   Then you’re under arrest for murder.
                   Officer 2:   If you don’t believe you can get up and
                                walk out of here, then I have no choice.
                                You just told me you believe you’re
                                going to jail.
                   Officer 1:   Did you just say that, yes or no?
                   Defendant: Yes, sir.
                   Officer 1:   Then I’m going to have to place you
                                under arrest and then I’ve got some
                                stuff to do before I continue. Because to
                                be voluntary, you’ve got to believe you
                                can walk out of here.
                   ....
                   Officer 1:   If you feel like you can leave, then we’re
                                good. But if not, then we’ll have to do
                                something different. Do you think you
                                can get up and walk out of here any
                                time?
                   Defendant: Not at any time, only after you free me
                              to go.
                   Officer 2:   That’s different, Bobby. Do you think
                                you can walk out of here right now?
                   Defendant: Yes.
      The unwarned portion of the interrogation lasted about five hours. When

defendant was formally arrested, officers Mirandized him and secured a written

waiver of his rights. Questioning continued for another four hours. During the
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unwarned portion of the interrogation defendant was given coffee and cigarettes and

was offered food.     He had access to the restroom if needed and was offered a

wastebasket when he began to feel ill. Defendant was, at times, left alone in the

interview room. There was no guard or police officer stationed at the door. Defendant

was in his mid-thirties, had obtained his GED, and was articulate, intelligent,

literate, and knowledgeable about the criminal justice system and its processes. As

the trial court found, defendant at times appeared eager to assist the officers in their

investigation and offered to help, offered to wear a wire, and offered to do whatever

else he could to help with the investigation.

       The trial court concluded as a matter of law that, “[b]ased on the totality of the

circumstances during the entirety of the interview, the statements made by

Defendant were voluntary,” and that “[t]he confession was not obtained as a result of

hope or fear instilled by the detectives.” Defendant argues that the trial court’s

findings of fact failed to disclose material circumstances regarding the giving of his

confession and therefore do not support the trial court’s conclusion of law. Defendant

has challenged five of the trial court’s findings of fact:

              5     The Defendant was not told he was under arrest[.]
              19[ ] The Defendant was emotional at times[.]
              20    The Defendant cried at times[.]
              21    The defendant expressed concern with his ability to
                    “keep food down[.]”
              26[ ] While there were no specific promises or threats
                    made by law enforcement, the detectives conducting
                    the interview did represent to the Defendant that
                    the District Attorney “might look favorably” at the

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                    Defendant if he made a confession[.]

      Defendant asserts that finding of fact 5 is “at best an incomplete finding,” as

he was told he would be arrested if he did not state that he was there voluntarily.

While we agree that a more detailed finding may have preserved for the record a more

nuanced understanding of the exchanges that took place between defendant and the

interviewing officers, there is competent evidence in the record to support the finding

as written. Consequently, the finding is conclusive on appeal.

      Defendant similarly asserts that findings of fact 19, 20 and 21 “downplay” the

actual circumstances of the encounter. Again, while it may be true that a more

detailed set of findings would have more thoroughly described defendant’s physical

and emotional state, the findings as written are not erroneous.         Instead, these

findings are supported by the evidence in the record and it is not the duty of this

Court to reweigh the evidence presented to the trial court. Consequently, we are also

bound by these findings.

      Finally, defendant challenges finding of fact 26 as inaccurate. Defendant

argues that detectives threatened him when they told him that they had sufficient

evidence to convict him of capital murder and that he would “wear” the whole charge

himself unless he provided them the names of his accomplices. However, we have

held that informing a defendant of the charge he is facing does not constitute a threat.

See State v. Richardson, 316 N.C. 594, 602, 342 S.E.2d 823, 829-30 (1986). We find

sufficient evidence in the record to support finding of fact 26 as written, and we are


                                         – 18 –
                                  STATE V. JOHNSON

                                  Opinion of the Court



consequently bound by it for purposes of appellate review.

      In addition to challenging several of the trial court’s findings of fact, defendant

also argues that his statements were involuntary as a result of statements made by

officers before he was Mirandized that “improperly induced hope that his confession

would benefit him.”      Defendant’s arguments incorporate the division of the

interrogation into “rounds” as in the United State Supreme Court’s analysis in

Seibert, 542 U.S. at 615, 159 L. Ed. 2d at 658, and defendant asks that this Court

evaluate the voluntariness of the statement he gave after receiving the Miranda

warnings in the second “round” of questioning through the lens of the statements by

officers in the first “round.” To do as defendant asks is unnecessary given the trial

court’s totality of the circumstances analysis which requires that the entire encounter

be evaluated to determine whether defendant freely and voluntarily chose to make a

confession. The question is not simply whether the officers made a promise or made

a threat, no matter when such statements were made during the encounter, but

whether any such statements made by the officers resulted in defendant’s will being

overborne such that his capacity for self-determination was so impaired that the

giving of his confession cannot be thought to be voluntary.

      Defendant did not argue to the trial court that officers made specific promises

to him or threatened him. He simply argued that their statements “improperly

induced hope that his confession would benefit him.” We note that the presiding

judge watched the entirety of the interrogation interview and concluded that

                                        – 19 –
                                  STATE V. JOHNSON

                                  Opinion of the Court



defendant’s statements were voluntarily made. The trial court had the benefit of

observing the testifying witnesses and heard extensive arguments from counsel. The

trial court’s findings of fact are supported by sufficient competent evidence and

support the conclusion that, under the totality of the circumstances, defendant was

not coerced or induced through hope or fear into giving his confession and that his

confession was in fact voluntarily given.

                                      V. – Conclusion

      We hold that the Court of Appeals erred in condensing the Miranda and

voluntariness inquiries into one. We also hold that defendant did not preserve the

argument that officers employed the “question first, warn later” technique to obtain

his confession in violation of Miranda and Seibert. The trial court’s conclusion that

the requirements of Miranda were met is adequately supported by its findings of fact,

as is its conclusion that defendant’s statements to officers were voluntarily made. We

therefore modify and affirm the decision of the Court of Appeals.

      MODIFIED AND AFFIRMED.




                                        – 20 –
      Justice HUDSON concurring in result.

      I concur in the result reached by the majority. Here the Court of Appeals

determined that although defendant’s constitutional rights were violated by the trial

court’s failure to suppress his inculpatory statements, this error was harmless beyond

a reasonable doubt due to the overwhelming evidence of defendant’s guilt. State v.

Johnson, ___ N.C. App. ___, ___, 795 S.E.2d 625, 640-41 (2017); see also State v. Autry,

321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988) (“Significantly, this Court has held that

the presence of overwhelming evidence of guilt may render error of constitutional

dimension harmless beyond a reasonable doubt.” (citing State v. Brown, 306 N.C. 151,

164, 293 S.E.2d 569, 578, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642

(1982))). Specifically, the Court of Appeals stated:

             [W]e hold that the overwhelming evidence of Defendant’s
             guilt of first-degree murder, based upon the evidence that
             Anita was murdered in the course of a robbery in which
             Defendant played an essential part, renders this error
             harmless beyond a reasonable doubt.

                     Both Josh and Tony, whose testimony Defendant did
             not move to suppress, identified Defendant as the third
             man involved in the robbery and shooting, and both stated
             Defendant was wearing a mask that covered his face. They
             both testified that Defendant and Tony entered the motel
             while Josh remained outside, and both claimed Defendant
             was carrying a gun. Brandy testified that there were two
             younger men without their faces covered, and an older,
             larger man whose face was covered by a mask. Brandy
             testified it was the older, larger man who held the gun, and
             who entered the motel with one of the younger men. Most
             importantly, Defendant’s DNA was recovered from under
             Anita’s fingernails. Although Defendant’s admission of
             participation in the crime, which we have held was
                                   STATE V. JOHNSON

                              Hudson, J., concurring in result



             involuntary, clearly prejudiced Defendant, in light of the
             overwhelming evidence presented pointing to Defendant as
             one of the three men involved in the robbery and murder,
             we hold the prejudice to Defendant was harmless beyond a
             reasonable doubt.     We reach this holding on these
             particular facts, and because the jury was instructed on
             acting in concert and felony murder based upon killing in
             the course of a robbery. The State did not have to prove
             that Defendant shot Anita, only that he was one of the
             three men involved in the robberies and murder. The
             evidence that Defendant was one of the three men involved
             was overwhelming, and the State has shown beyond a
             reasonable doubt that Defendant would have been
             convicted even had his motion to suppress his inculpatory
             statements been granted.

Johnson, ___ N.C. App. at ___, 795 S.E.2d at 640-41 (footnote omitted). In my opinion,

the Court of Appeals properly concluded that there was overwhelming evidence of

defendant’s guilt of felony murder, particularly in light of the evidence of defendant’s

DNA recovered from under the victim’s fingernails.

      Accordingly, this Court’s analysis and determination regarding defendant’s

constitutional rights is unnecessary, in my view. See James v. Bartlett, 359 N.C. 260,

266, 607 S.E.2d 638, 642 (2005) (“However, appellate courts must ‘avoid

constitutional questions, even if properly presented, where a case may be resolved on

other grounds.’ ” (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101,

102 (2002) (per curiam))); see, e.g., State v. Powell, 340 N.C. 674, 686, 459 S.E.2d 219,

224 (1995) (“Assuming arguendo that the trial court erred by admitting the

statements defendant made after [the police officer] destroyed the [Miranda] waiver

form, we hold that the error is harmless beyond a reasonable doubt.” (citing N.C.G.S.



                                            -2-
                                   STATE V. JOHNSON

                              Hudson, J., concurring in result



§ 15A-1443(b) (1988))), cert. denied, 516 U.S. 1060, 116 S. Ct. 739, 133 L. Ed. 2d 688

(1996). Because I conclude that any error by the trial court was harmless beyond a

reasonable doubt, I would affirm the Court of Appeals on that basis alone. Therefore,

I respectfully concur in the result.




                                            -3-
