              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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             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




                                         -4-
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                                  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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                        (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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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


                           -9-
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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



                                                  - 10 -
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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?”

                                              - 12 -
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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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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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             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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        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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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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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



                                           - 19 -
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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



                                           - 20 -
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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



                                          - 23 -
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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.




                                          - 25 -
