              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-436

                               Filed: 19 March 2019

Harnett County, Nos. 11 CRS 53886, 13 CRS 424, 16 CRS 651

STATE OF NORTH CAROLINA

             v.

SEBASTIAN GAMEZ


      Appeal by defendant from judgments entered 6 February 2017 by Judge C.

Winston Gilchrist in Harnett County Superior Court. Heard in the Court of Appeals

15 January 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N.
      Bolton and Assistant Attorney General Joseph L. Hyde, for the State.

      Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.


      DAVIS, Judge.


      In this case, we reexamine the circumstances under which Miranda warnings

are required when a member of the armed forces is questioned by his superior officer

about his involvement in the commission of a crime. Defendant Sebastian Gamez

entered an Alford plea to the charges of second-degree murder, aiding and abetting a

first-degree kidnapping, and conspiracy to commit kidnapping, but his plea was

conditioned on his right to appeal the trial court’s denial of his motion to suppress

certain oral and written inculpatory statements made by him to a superior officer.

Because we conclude that the trial court’s order denying his motion to suppress
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                                   Opinion of the Court



lacked findings of fact on key issues and the court did not fully apply the correct legal

standard in ruling on Defendant’s motion, we vacate the order in part and remand

for further proceedings.

                      Factual and Procedural Background

      On 25 March 2013, Defendant, then a private in the United States Army

stationed at Fort Bragg, was indicted by a grand jury on charges of murder,

concealing the death of a person, first-degree kidnapping, and conspiracy to commit

first-degree kidnapping. On 2 June 2016, Defendant filed a motion to suppress four

items of inculpatory evidence: (1) statements he made to detectives at the Harnett

County Sheriff’s Office on 16 August 2011; (2) statements made to detectives at the

Cumberland County Sheriff’s Office on 17 August 2011; (3) an oral statement made

to Sergeant Rebecca Schlegelmilch on 18 August 2011; and (4) written statements

contained in a letter sent by him from jail to Sergeant Schlegelmilch dated 2

September 2011.

      A hearing was held on Defendant’s motion to suppress on 5 December 2016 in

Harnett County Superior Court before the Honorable C. Winston Gilchrist. On 10

March 2017, the trial court entered an order (the “Suppression Order”) denying

Defendant’s motion in its entirety. In the Suppression Order, the trial court made

the following pertinent findings of fact:



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1. On August 16, 2011 Rebecca Schlegelmilch was a first
sergeant in 3rd brigade of the United States Army stationed
at Fort Bragg, North Carolina. She was then, and at all
times material herein a non-commissioned officer.

2. On August 16, 2011 Christopher Blackett and
Sebastian Gamez were privates in her company. Blackett
was her driver and Gamez was in the distribution platoon
as a truck driver.

3. During this time, Lavern Sellers was a sergeant also
in Schlegelmilch’s company.

4. The primary duties of the first sergeant are to look
after the health and welfare of the soldiers under her.
These included training and professional development.
While at times these also include some investigations of
criminal conduct by soldiers, that is not a specific duty but
is based on a case by case basis.

5. At no time material herein was Schlegelmilch
conducting an investigation into the death of Vincent
Carlisle or the involvement of Blackett and Gamez. In fact,
the military as a whole was not investigating this as a
criminal matter.

6. On August 16, 2011 Sellers contacted Schlegelmilch
after Blackett told him that Blackett had shot somebody.
Upon learning that information Schlegelmilch had Sellers
call Blackett so they could meet. When Blackett showed
up at company headquarters Schlegelmilch asked him
what had happened.

7. At first Blackett did not want to tell her anything
because he did not want to involve Schlegelmilch.
However, after Schlegelmilch told him that she needed to
know what happened he told her that somebody broke into
his and Gamez’s house and that the two of them tried to
capture the individual. When they did that, the individual

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pulled a gun on Gamez and Blackett shot that individual.
He also said that he and Gamez then took the individual
into the woods. He said that he was not sure if the
individual was alive or dead.

8. Initially Schlegelmilch was not sure if this had even
happened, whether the individual was alive or dead, or
where this might have happened. Blackett agreed to take
her and Sellers on highway 210 in the direction he said he
and Gamez went in an attempt to locate where the body
was left.

9. After driving some time, Schlegelmilch began
Googling “police station” or something similar on her phone
to locate the nearest law enforcement center. At that time,
they were near the Harnett County Sheriff’s Office
(hereinafter HCSO or HC) so she directed Sellers to that
location. Once there she recommended to Blackett that he
tell the police what was going on, but if he didn’t, she would
have to. She was concerned that there might [be] a threat
against one of her soldiers or that the individual shot might
need help.

10. During the drive, she called Gamez to ask him what
happened in an attempt to confirm the information
Blackett was giving her. Gamez’s response was that he did
not know what she was asking. He said he had no
knowledge of what she was talking about. She did not ask
him any direct questions about what Blackett had told her.

11. Once at the Sheriff’s office, she asked if they could talk
to someone who could help and Blackett, Sellers and she
were placed in a room. Once an officer came in the room,
Blackett started telling the officer why they were there.
The officer left and some detectives arrived. Blackett went
to a different area of the sheriff’s office while Schlegelmilch
and Sellers remained in the hallway.



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12. While Blackett was with the detectives Schlegelmilch
called her commander (Captain Lett) to inform her of the
situation. Also, at some point during the interview
Schlegelmilch stepped outside the Sheriff’s office to smoke
and called Lett to ask her to get a hold of Gamez and have
him go [to] the Sheriff’s office so he could be interviewed.
A detective or officer overheard her and pulled her aside.
That officer told her that she couldn’t “tell these people to
come up here or make people come up here. If they want
to they can.” She then called back to the company and
talked to the NCO taking Gamez to the Harnett County
Sheriff’s Office and told him that they couldn’t make
Gamez go to the Sheriff’s office and he didn’t have to go
there if he didn’t want to. However, Gamez was already on
his way.

13. Upon receiving the call from Schlegelmilch that the
detectives wanted to talk to Gamez, Captain Lett informed
her battalion Commander, Lt. Col[.] Baumeister, and
command Sergeant Major Hall, of the situation. Captain
Lett was told to bring Gamez to the company headquarters.
She left headquarters and went to the firing range to get
Gamez. She told Gamez to get back to the headquarters
without explaining to him the reasons for his return.
Driving back to headquarters, Gamez did not ask any
questions and was not asked any by Captain Lett or anyone
else.

14. Lt. Bobby Reyes with the Cumberland County
Sheriff’s Office (hereinafter CCSO or CC) received
information from Nan Trogden [sic] of the CCSO that she
had received a call from Harnett County Sheriff’s Office
that they had a soldier there who was telling them about a
shooting homicide, possibly in Cumberland County. He
then contacted Lt. Webb of the HCSO to confirm the
information. Reyes and Sgt. Brown then went to the
Harnett County Sheriff’s Office. Reyes also dispatched Sgt.
Gagnon and Sgt. Trogdon to 102 Carmichael Street in


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Spring Lake, the location where the shooting was alleged
to have occurred.

15. Upon arriving at the HCSO Reyes and Brown were
briefed by Lt. Webb. They were advised that a person, later
identified as Vincent Carlisle, had broken into Blackett’s
and Gamez’s residence days earlier and that on Sunday
evening he broke in again. There was a scuffle in the living
room. Mr. Carlisle ran out the back door and was chased
by Blackett. Gamez ran out the front door to cut Carlisle
off. Blackett said that Carlisle then pulled a gun on Gamez
and Blackett shot Carlisle several times. After that the two
soldiers got trash bags, wrapped up Carlisle’s body, put it
in the back of Gamez’s Hummer and drove to Harnett
County where they disposed of the body. The information
also was that they had thrown the victim’s gun into the
Cape Fear River and that Blackett’s gun was disassembled
and stored inside Blackett’s vehicle on Ft. Bragg.

16. When Reyes and Brown arrived at the HCSO,
Blackett was not there but was with a HC deputy,
Schlegelmilch and Sellers travelling the roads looking for
the location where the body might have been left. Gamez
was also not at the HCSO but was on the way. Reyes
contacted other deputies with Cumberland County and had
them go to Fort Bragg in order to retrieve the weapon from
Blackett, which he agreed to give them.

17. When Gamez arrived at the HCSO Schlegelmilch told
him, “I can’t make you be here, so you don’t have to talk or
do anything.” His response to her was “okay” or “Yes, First
Sergeant.” Gamez then walked into the HCSO and went
to the same area where Blackett had been to be
interviewed. Gamez was directed into the interview room
by Lt. Webb of the HCSO who thanked Gamez for being
there. There he was interviewed by Reyes and Brown.
Neither Reyes nor Brown had anything to do with Gamez
appearing at the Sheriff’s Office.        Prior to being


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interviewed, Gamez was not given any Miranda rights
[sic].

18. Before, during and after the interview, Gamez was not
handcuffed or restrained in anyway [sic]. He was not
threatened at all. He was not promised anything. Except
for the actual interview, detectives with Cumberland
County had no prior contact with Gamez and did not ask
him any questions. During the interview Gamez gave a
statement that essentially mirrored that given by Blackett.

19. At one point during the interview, Reyes told Gamez
that they were going to take him in a car to look for
Carlisle’s body. To this, Gamez responded that he was not
going to do that, that he did not have to do that, and that
he was told he was at the Sheriff’s Office only to give
information. At that point, Reyes nor Brown pushed the
issue further. Additionally, based on the information given
during the interview, detectives were not sure whether
Carlisle was hurt, alive or deceased. During the interview,
Gamez never asked for an attorney, nor did he state that
he did not want to answer any further questions. He was
cooperative throughout.

20. At the conclusion of the interview, Gamez was not
arrested or further detained. He was allowed to leave the
Sheriff’s Office. Nether Reyes nor Brown was aware of who
Gamez left with.

21. After interviewing Gamez, Reyes and Brown then
interviewed Blackett.

22. At the conclusion of the interviews of Blackett and
Gamez, Blackett told Schlegelmilch that he had the
weapon involved in the shooting and was willing to give it
to the Cumberland County detectives. Gamez was present
at this conversation. Sellers, Schlegelmilch, Blackett and
Gamez then left the HCSO in Seller[s’] vehicle and drove
back to Fort Bragg. At no point was Gamez under any

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orders to cooperate with law enforcement or to give
statements or information to them. Upon arriving at Fort
Bragg, Blackett went to his car with Schlegelmilch, located
the weapon used in the shooting, assembled it, [and] gave
it to Schlegelmilch, who then gave it to an MP. Blackett
then agreed to go to his residence and allow law
enforcement to search his residence.             Blackett,
Schlegelmilch and Sellers then went to 102 Carmichael
Drive, Spring Lake, the home of Blackett and Gamez.

23. Shortly after they arrived, Detectives Gagnon and
Trogdon of the Cumberland County Sheriff’s Office left the
residence to go to Fort Bragg to meet Gamez to obtain
consent to search the Hummer and residence. Upon
meeting with Gamez at Fort Bragg, he signed a consent to
search the residence and his vehicle.

24. Blackett, after giving law enforcement the weapon
used in the shooting, arrived at the residence and signed a
consent for the search of that home.

25. As a part of the search of Gamez’s Hummer, the
officers desired to spray the inside with Blue Star reagent
to detect the presence of blood. However, where the vehicle
was initially parked there was too much lighting. Gamez
drove his vehicle to another location on post where it was
dark enough to use the reagent. Schlegelmilch went with
him as a passenger.

26. The Defendant’s home was searched by Cumberland
County officers. Schlegelmilch and Sellers remained
outside the residence some distance away. During this
search, law enforcement came to the conclusion that the
incident could not have happened as it was described to
them by Gamez and Blackett.

27. After the search, law enforcement asked Blackett and
Gamez if they would agree to go to the CCSO to be
interviewed on August 17. They agreed and Cumberland

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County detectives arranged to contact Schlegelmilch about
the time and place for this interview. At the least, Blackett
specifically agreed that night to go to the August 17, 2011
interview and Gamez, being present when the question
was posed, did not object in any way.

28. Upon return to base, Blackett and Gamez had their
liberty restricted to base and were not allowed to live at the
Carmichael residence.        Their sleeping location was
restricted to the conference room at headquarters. While
liberty restrictions were not unusual for soldiers, First Sgt.
Schlegelmilch, had not been involved in a restriction of this
type. However, this restriction was not for punishment,
but for concern over the safety and welfare of the soldier,
including fear of retaliation (the victim was the neighbor of
the defendant), fear of reprisals and gossip among other
soldiers, and safety of Gamez from harm to himself (he had
already attempted suicide one previous time). Criminal
investigation and general law enforcement were not
considered as a part of this decision.

29. On the 17th of August, Schlegelmilch received a call
from CC detectives setting up an interview with Gamez
and Blackett for that day.

30. On the morning of the 17th Gamez went about his
duties. At some point Gamez came to headquarters and
Sellers, Schlegelmilch, Gamez and Blackett went to the
CCSO in the same vehicle. At no time did Gamez object to
going. He was under no compulsion to do so. Though
escorted by Schlegelmilch and Sellers, neither had the
authority to force Gamez to go to the Cumberland County
Sheriff’s Office or to give an interview.

31. Upon arriving at the CCSO the four signed in. Sellers
and Blackett went into one room and Schlegelmilch and
Gamez went into another. Detective Gagnon joined
Schlegelmilch and Gamez in that interview room.


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32. At no point was Schlegelmilch conducting any type of
investigation. At no time did Gamez object to talking with
law enforcement.

33. Det. Gagnon conducted an interview with Gamez. In
the room was Gagnon, Schlegelmilch, and Gamez. At the
beginning of the interview Gagnon explained to Gamez
that the military had different rules than civilians. She
explained that she wanted to make sure Gamez was there
because he wanted to be there and that he was not ordered
to be at the Sheriff’s Office, nor was he ordered to give an
interview. She specifically asked Gamez if he wanted to be
at the Sheriff’s Office or whether he was ordered to be
there. He replied that he wanted to be there and he was
there on his own. He was asked if he wanted his first
sergeant in the room during the interview and he said he
did.

34. At no time was Gamez restrained in any way. He was
free to leave and not answer questions. His demeanor was
cooperative. At no time did Schlegelmilch require him to
answer any questions. At one point during the interview
Reyes knocked on the interview room door and called for
Schlegelmilch to leave the room out of concern that it would
appear Gamez was being required to give the interview.
After Gagnon explained to him that Gamez requested
Schlegelmilch to be in the room Gagnon went back in the
room and again asked Gamez, alone, about her presence.
Gamez told Gagnon that he would not speak to Gagnon
without Schlegelmilch being present.

35. At the end of the interview, Gamez was released to go
about his business and he left the CCSO.

36. At no time did anyone associated with Harnett County
law enforcement or Cumberland County law enforcement
request that Gamez be detained prior to his actual arrest,
and at no time did anyone associated with either agency


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request Schlegelmilch or others in the Army to elicit
information from Gamez.

37. During the day of August 18, 2011 officers with the
Harnett County Sheriff’s Office and the Cumberland
County Sheriff’s Office discovered the body of Vincent
Carlisle in the woods off of Shady Grove Road in Harnett
County. The location was discovered by using cell phone
data from the phones of Blackett and Gamez pinpointing
their location during the night of August 14, 2011.

38. Based upon the location of the body and the fact that
shell casings and projectiles were found near and under
Carlisle’s body, it became clear to law enforcement that the
killing had occurred in Harnett County and that the
version of events given to them by Blackett and Gamez was
not the truth.

39. At that point, a decision was made to arrest the
defendant. This decision was not told to Schlegelmilch.

40. Schlegelmilch first realized that Blackett had lied to
her about what happened after Gamez’s mother called her
and informed her that Carlisle’s body had been found.
Upon receiving this information she went to the building
where Gamez and Blackett had been placed and saw law
enforcement from Harnett and Cumberland counties
present at headquarters. At that point she pulled Gamez
aside and told him that she knew Blackett had lied to her
and she asked Gamez what happened. She did not do this
at the direction of law enforcement.

41. At that point Gamez told her that Gamez and Blackett
had invited Carlisle over to their house to confront him
about a break-in at their house. Once there, Gamez said
they started beating and choking him. Gamez told her that
it got out of hand and they took Carlisle to the woods.
Gamez told her that he drove. While Blackett took Carlisle
into the woods Gamez drove around. After a few minutes

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Blackett called him telling him to come back and get him.
When Gamez picked Blackett up, Blackett told Gamez that
Carlisle tried to get away and he shot Carlisle.

42. After some time had passed, Schlegelmilch told this to
Cumberland County detectives and later gave this
statement to Harnett County law enforcement.

43. Gamez and Blackett were arrested on August 18, 2011
and charged with the murder of Vincent Carlisle. They
were placed in the Harnett County jail. Gamez was
appointed an attorney.

44. On August 18, 2011 Gamez was read his Fifth
Amendment rights and did not waive them, nor did he give
a statement to law enforcement.

45. Separation proceedings from the Army were begun on
Gamez on August 25, 2011. He was personally served with
those papers at the Harnett County detention center by
Captain Lett on August 31, 2011 and waived his rights to
counsel and a hearing, and to propose any defense, and to
contest the decision to discharge him.

46. From the time Gamez was arrested, Schlegelmilch
visited Gamez in the detention center, talked to him on the
phone and the two wrote letters to each other. The letters
were friendly in nature.

47. On August 31, 2011 Schlegelmilch wrote a letter to
Gamez while he was in the Harnett County detention
center. At the end of the letter she inquired of Gamez what
happened that night. She stated that “I really want to
know why all this took place. Will you tell me the real
reason this all happen[e]d? It can’t be just over a break-in.
I am going to try to go to your court date on the 6th, if I can.”

48. In response, Gamez wrote Schlegelmilch on
September 2, 2011 acknowledging receipt of her letter and

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               telling her that he would have his lawyer get the
               September 2nd letter to her. He went on to tell her that he
               and Blackett asked Carlisle to their house, he tried to run
               so they caught him, handcuffed him, beat him, threatened
               him, “bagged” him and . . . drove him to the woods. Then
               Blackett took him into the woods and shot him while
               Gamez drove around.

               49. Gamez was under no compulsion to write this letter
               and did so on his own volition. This letter was not the
               result of any interrogation by law enforcement.

         Based on these findings, the trial court concluded that none of Defendant’s

statements were “the product of any custodial interrogation by law enforcement or

the equivalent of law enforcement,” that “[e]ach of the statements was freely and

voluntarily given by the Defendant and [was] not coerced by anyone,” and that the 2

September 2011 letter “was freely and voluntarily written by him and given to

[Sergeant Schlegelmilch] . . . . not as a result of any interrogation by her or anyone

else.”

         On 6 February 2017, Defendant entered an Alford plea to the charges of

second-degree murder, aiding and abetting a first-degree kidnapping, and conspiracy

to commit kidnapping. As part of the plea arrangement, the State took a voluntary

dismissal of the charge of concealing the death of a person and Defendant reserved

his right to appeal the trial court’s denial of his motion to suppress. Defendant gave

timely notice of appeal to this Court.

                                         Analysis

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       On appeal, Defendant contends that the trial court erred in denying his motion

to suppress (1) the oral statement he made to Sergeant Schlegelmilch on 18 August

2011; and (2) the 2 September 2011 letter he sent her from jail.1 He contends that

the suppression of these statements to Sergeant Schlegelmilch was required because

he did not receive Miranda warnings before making them despite the fact that the

statements were made during custodial interrogation. In making this argument, he

contends that based on prior decisions from this Court Sergeant Schlegelmilch

effectively served as a law enforcement officer at the time the statements were given,

thereby triggering his right to receive Miranda warnings. We address in turn his

arguments as to each of these statements.

I.   18 August Oral Statement

       “When a motion to suppress is denied, this Court employs a two-part standard

of review on appeal: 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. Jackson, 368

N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted).

“Unchallenged findings of fact are deemed to be supported by competent evidence and

are binding on appeal. Conclusions of law are reviewed de novo and are subject to



       1  Because his appeal is limited to those two issues, he has waived his right to challenge the
trial court’s rulings as to the remaining evidence referenced in his motion to suppress.
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full review.” State v. Warren, 242 N.C. App. 496, 498, 775 S.E.2d 362, 364 (2015)

(internal citations and quotation marks omitted), aff’d per curiam, 368 N.C. 756, 782

S.E.2d 509 (2016).

      It is well established that Miranda warnings are required to be given when a

defendant is subjected to custodial interrogation. See, e.g., State v. Gaines, 345 N.C.

647, 661, 483 S.E.2d 396, 404, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997)

(“[The North Carolina Supreme Court] has consistently held that the rule of Miranda

applies only where a defendant is subjected to custodial interrogation.”). This Court

has previously explained the potential applicability of Miranda to members of the

military being investigated for crimes under civilian law.

             In Miranda v. Arizona, the Supreme Court defined
             custodial interrogation as questioning initiated by law
             enforcement officers after a person has been taken into
             custody or otherwise deprived of his freedom of action in
             any significant way. When dealing with a defendant who
             is a member of the armed forces and whose statement is
             given to a superior officer, the inquiry becomes whether a
             reasonable Marine in [the defendant’s] situation would
             believe his freedom of movement was limited to the same
             extent as if [he] were under formal arrest.

State v. Walker, 167 N.C. App. 110, 123-24, 605 S.E.2d 647, 657 (2004) (internal

citations and quotation marks omitted), vacated in part on other grounds, 361 N.C.

160, 695 S.E.2d 750 (2006).




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      Our Supreme Court has explained that “[b]ecause Miranda is limited to

custodial interrogations, statements made to private individuals unconnected with

law enforcement are admissible so long as they were made freely and voluntarily.”

In re W.R., 363 N.C. 244, 248, 675 S.E.2d 342, 344 (2009) (citation and quotation

marks omitted). Our courts have recognized exceptions to this general rule, however,

where a private individual is “acting as an agent of law enforcement,” id., or, in the

military context, under certain circumstances where a member of the armed forces is

subject to custodial interrogation by a superior officer, Walker, 167 N.C. App. at 124,

605 S.E.2d at 657.

      This Court has addressed the applicability of Miranda in the military context

in two prior cases. First, in State v. Davis, 158 N.C. App. 1, 582 S.E.2d 289 (2003),

the defendant, who was a Marine, received a phone call warning him that deputy

sheriffs were on the way to arrest him because he was a suspect in a murder. The

defendant told his sergeant that he needed to talk to a lawyer. When his sergeant

asked him why, he refused to answer. The defendant was escorted shortly thereafter

to the office of his platoon commander, Chief Warrant Officer Kenneth Lee Brown.

Id. After Brown was informed of the defendant’s request, he asked the defendant “if

he was involved in the murder and defendant replied ‘sort of.’ Brown then said: ‘Well,

are you involved or not involved? Yes or no question.’” Id. The defendant proceeded



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to admit that he was, in fact, involved and that he had been told that the victim had

raped his wife. Id.

      On appeal, this Court addressed the issue of whether the statements made to

Brown “were the product of a custodial interrogation” for purposes of Miranda. Id.

We first considered the “military context” of the interrogation, stating the following:

                    In deciding whether the Platoon Commander’s
             questioning of defendant constituted a custodial
             interrogation, we must consider the realities and
             necessities of military life. We cannot disregard the
             military context. The United States Supreme Court has
             long recognized that the military is, by necessity, a
             specialized society separate from civilian society.
             Requiring a member of the armed forces to choose either to
             disregard a direct question of a commanding officer or
             forego his or her Fifth Amendment rights, will risk
             undermining the discipline and order that is the necessary
             hallmark of our military. Those members of the armed
             forces who commendably act in accordance with their
             training should not, for their reward, be punished by being
             stripped of their Fifth Amendment rights.

             ....

                    The United States Supreme Court has observed that
             the military’s law is that of obedience. No question can be
             left open as to the right to command in the officer, or the
             duty of obedience in the soldier. Indeed, the military can
             only function with strict discipline and regulation that
             would be unacceptable in a civilian setting.

                    A superior officer must be assured that a soldier will
             react immediately and without question to a command on
             the battlefield. That instinctive reaction has to be instilled
             in a soldier long before he goes to war: The inescapable

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demands of military discipline and obedience to orders
cannot be taught on battlefields; the habit of immediate
compliance with military procedures and orders must be
virtually reflex with no time for debate or reflection.

....

       The United States Court of Appeals for the Armed
Forces has recognized that the unique environment of the
military must be taken into account when determining,
under Miranda, the admissibility of statements made to
commanding officers. [The Court has] stated: In the armed
forces, a person learns from the outset of recruit training
to respond promptly to the direct orders and the indirect
expectations of superiors and others, such as military
police, who are authorized to obtain official information.
Failure to respond to direct orders can result in criminal
offenses unknown in civilian life.

....

      The Supreme Court has stressed that the rights of
men in the armed forces must perforce be conditioned to
meet certain overriding demands of discipline and duty,
and the civil courts are not the agencies which must
determine the precise balance to be struck in this
adjustment. Only Congress has the authority to decide
how to balance the rights of men and women in the service
with the needs of the armed forces: The Framers expressly
entrusted that task to Congress.

       Yet, if civilian courts may hold . . . that unwarned
questioning by superior officers is not custodial
interrogation and does not violate Miranda in the civilian
courts, then that balance will be substantially disrupted.
Although a member of the armed forces should not be
encouraged to debate whether or not to answer his
superior’s question, a rule making his responses admissible
would effectively mandate that he do so. On the other

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                                   Opinion of the Court



             hand, a man or woman in the service who acts instinctively
             and answers automatically—as he or she has been
             trained—can hardly be considered to have acted
             voluntarily to the same extent as a civilian.

Id. at 6-8, 582 S.E.2d at 293-95 (internal citations, quotation marks, ellipses,

emphasis, and brackets omitted).

      We held that because Brown “was both a commissioned officer and Platoon

Commander [and thus] had authority to order the arrest” of the defendant, he “was

effectively functioning as a law enforcement officer at the time that defendant’s

statements were elicited.” Id. at 9, 12, 582 S.E.2d at 295, 296. We further ruled that

for purposes of Miranda the defendant had been in custody while he was being

questioned. With regard to this issue, we explained that the trial court “should have

considered what a reasonable Marine in defendant’s position, under the totality of

the circumstances, would have believed. A court may make this determination only

by reviewing the expectations governing Marines.” Id. at 10, 582 S.E.2d at 296.

      We observed that the defendant had not voluntarily subjected himself to

questioning by Brown in that the defendant “could not, while he was being

questioned, leave Brown’s office without Brown’s permission,” and that Brown’s

question as to whether the defendant had been involved in the murder sounded

“remarkably like an order.” Id. at 10, 11, 582 S.E.2d at 296. For these reasons, we

concluded “that a custodial interrogation had occurred and that defendant’s


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statements to Brown should not have been admitted into evidence.” Id. at 12, 582

S.E.2d at 297.

      We next applied these principles in State v. Walker. The defendant in Walker

was a Marine who had been convicted of robbery with a dangerous weapon and

assault with a deadly weapon inflicting serious injury. At trial, statements that the

defendant made to his superior officer, Master Gunnery Sergeant Dean, were

admitted into evidence. The defendant argued on appeal that because he had not

been read his Miranda rights prior to giving these statements, the trial court should

have excluded them. Walker, 167 N.C. App. at 117, 123, 605 S.E.2d at 651, 656-57.

This Court “acknowledge[d] that interrogation by a superior officer in the military

raises a significant risk of inherent compulsion, which is of the type Miranda was

designed to prevent.” Id. at 124, 605 S.E.2d at 657 (citation omitted). Nevertheless,

we held that the record did “not indicate [that the defendant] was ‘in custody’ at the

time he” made the statements at issue such that Miranda warnings were not

required. Id.

             The record shows that . . . Walker was questioned by First
             Sergeant Nylon, of the Naval Criminal Investigative
             Services, and Investigator Melton, and at each questioning
             he received Miranda warnings. Dean did not see Walker
             until the next day. Dean testified that when Walker came
             in the next morning “we started talking in my office, and
             basically he explained to me what the agent wanted.” Dean
             then asked Walker if “he had anything to do with this
             mess” and whether he was carrying a weapon of any kind.

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             Walker told Dean he was at [the nightclub] that night, but
             he had only gone to watch [another Marine’s] back because
             [he] was having some kind of dispute with the owner’s
             boyfriend. Walker also told Dean that he carried a baseball
             bat of some type and he remained outside watching the
             bouncers. There was no testimony that Walker felt he
             could not leave or that he had to answer Dean’s questions.
             Instead, it appears that Dean was simply inquiring into
             why Walker was being questioned.            Since Dean’s
             questioning of Walker did not constitute a custodial
             interrogation, Dean was not required to administer
             Miranda warnings prior to their conversation.

Id. (quotation marks and ellipses omitted).

      In the present appeal, Defendant argues that Davis is controlling because like

the defendant in that case, he was interrogated by a superior officer — Sergeant

Schlegelmilch — who had the power to arrest him. The State, conversely, contends

that Davis applies only in situations where a soldier is questioned by a commissioned

officer because only commissioned officers possess independent arrest authority.

      Federal law governs the power of arrest in the armed forces. 10 U.S.C. § 809

states, in pertinent part, as follows:

             (a) Arrest is the restraint of a person by an order, not
             imposed as a punishment for an offense, directing him to
             remain within certain specified limits. Confinement is the
             physical restraint of a person.

             (b) An enlisted member may be ordered into arrest or
             confinement by any commissioned officer by an order, oral
             or written, delivered in person or through other persons
             subject to this chapter. A commanding officer may
             authorize . . . noncommissioned officers to order enlisted

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                                         Opinion of the Court



               members of his command or subject to his authority into
               arrest or confinement.

10 U.S.C. § 809 (2012) (emphasis added).

       Thus, a commanding officer is authorized to delegate his or her arrest

authority to a non-commissioned officer. In situations where this has occurred, the

non-commissioned officer’s interrogation of a soldier can trigger the need for Miranda

warnings.2

       It is undisputed that Sergeant Schlegelmilch was a non-commissioned officer

at all times relevant to this case. Therefore, in order to resolve the issue of whether

Defendant was entitled to Miranda warnings when he made the 18 August oral

statement to her, it is necessary to first determine whether Sergeant Schlegelmilch

had previously been delegated authority to arrest Defendant by a commanding officer

as authorized by 10 U.S.C. § 809(b).

       Defendant has not challenged any of the trial court’s findings of fact contained

in its Suppression Order, and we are therefore required to accept them as binding on

appeal. See Warren, 242 N.C. App. at 498, 775 S.E.2d at 364 (2015). However,

although the trial court noted in its order that Sergeant Schlegelmilch was a non-

commissioned officer, it did not make any findings of fact as to whether the authority


       2 We note that under federal law, any enlisted member of the armed forces who “willfully
disobeys the lawful order of a . . . noncommissioned officer . . . shall be punished as a court-martial
may direct.” 10 U.S.C. § 891 (2012).

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                                  Opinion of the Court



to arrest Defendant had, in fact, been delegated to her. We note from our review of

the transcript that at the suppression hearing Sergeant Schlegelmilch testified that

earlier on the morning of 18 August she had placed Defendant and Blackett into

separate rooms with a non-commissioned officer stationed in each room to make sure

they did not leave. The trial court failed to make any findings, however, on the

circumstances under which Sergeant Schlegelmilch took this action or who

authorized her to do so. Such findings are central to the question of whether Sergeant

Schlegelmilch should be deemed to have been acting as a law enforcement officer for

purposes of Miranda.

      Furthermore, in its analysis the trial court did not fully apply the correct legal

standard with regard to this issue. The court appropriately made findings of fact and

conclusions of law on the issue of whether Sergeant Schlegelmilch acted at the behest

of civilian law enforcement officers in questioning Defendant such that she was acting

as an agent of those officers. However, the trial court neither acknowledged Davis

and Walker nor analyzed the evidence in light of the legal principles set out therein.

Indeed, the Suppression Order bears no indication that the trial court recognized the

potential applicability of Miranda if Sergeant Schlegelmilch had, in fact, been

delegated the authority to arrest Defendant and then proceeded to question him

under circumstances amounting to custodial interrogation.



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      Nor did the trial court make findings about the specific degree to which

Defendant’s liberty had been restricted at the time he made the 18 August statement

to Sergeant Schlegelmilch. As noted above, Sergeant Schlegelmilch testified that at

some time during the morning of 18 August 2011, she placed Defendant and Blackett

into separate rooms with assigned non-commissioned officers posted in each room as

guards to ensure that they did not leave. This restriction on their movements was

significantly greater than the restrictions that had been placed on Defendant and

Blackett two days earlier, which required them to remain on base and sleep in the

same conference room but permitted them to move about the base, complete job

assignments, and fulfill other responsibilities under supervision. The trial court’s

order, however, did not address the change in their confinement or mention the

specific types of restrictions to which Defendant was subject at the time he made the

18 August statement to Sergeant Schlegelmilch.

      As discussed above, Miranda warnings are required only when the defendant

is subjected to custodial interrogation. Gaines, 345 N.C. at 661, 483 S.E.2d at 404.

“A person is in custody for purposes of Miranda when it is apparent from the totality

of the circumstances that there is a formal arrest or restraint on freedom of movement

of the degree associated with a formal arrest.” State v. Garcia, 358 N.C. 382, 396, 597

S.E.2d 724, 736 (2004) (citation and quotation marks omitted), cert. denied, 542 U.S.

1156, 161 L. Ed. 2d 122 (2005). Thus, findings as to the specific manner in which

                                            - 24 -
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                                   Opinion of the Court



Defendant’s freedom of movement had been restrained at the time he was questioned

by Sergeant Schlegelmilch are necessary in order to determine whether he was

subjected to custodial interrogation.

      This Court has explained that “[i]n ruling upon a motion to suppress evidence,

the trial court must set forth in the record its findings of fact and conclusions of law.

The general rule is that the trial court should make findings of fact to show the bases

of its ruling.” State v. McCrary, 237 N.C. App. 48, 51, 764 S.E.2d 477, 479 (2014)

(internal citations, quotation marks, and brackets omitted), aff’d in part and

remanded, 368 N.C. 571, 780 S.E.2d 554 (2015).

             Findings [of fact] and conclusions [of law] are required in
             order that there may be a meaningful appellate review of
             the decision on a motion to suppress.

             . . . [W]hen the trial court fails to make findings of fact
             sufficient to allow the reviewing court to apply the correct
             legal standard, it is necessary to remand the case to the
             trial court. Remand is necessary because it is the trial
             court that is entrusted with the duty to hear testimony,
             weigh and resolve any conflicts in the evidence, find the
             facts, and, then based upon those findings, render a legal
             decision, in the first instance, as to whether or not a
             constitutional violation of some kind has occurred.

State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 66-67 (2012) (internal citations

and quotation marks omitted). See State v. McKinney, 361 N.C. 53, 63, 65, 637 S.E.2d

868, 875, 876 (2006) (“We . . . should afford the trial court an opportunity to evaluate

the validity of [a] warrant using the appropriate legal standard,” where the trial court

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                                   Opinion of the Court



makes only “limited findings of fact,” none of which “indicate[ ] whether the trial court

would have . . . upheld the validity of the warrant” if it had applied the correct legal

standard.)

      In McCrary, the defendant appealed the trial court’s denial of his motion to

suppress evidence resulting from a blood test. The trial court made the following

factual findings: Deputy Justin Fyle responded to the call of a homeowner after the

defendant pulled into the homeowner’s driveway and apparently fell asleep in his car.

Deputy Fyle arrested the defendant after administering an Alcosensor test yielding

results “so high that Deputy Fyle determined that there may be a need for medical

attention for the defendant.” McCrary, 237 N.C. App. at 49, 764 S.E.2d at 478

(quotation marks omitted). The defendant was taken to the hospital at his request,

and while there he grew increasingly belligerent and refused to consent to a blood

test. Deputy Fyle ultimately collected the defendant’s blood without a warrant,

approximately three hours after he had responded to the homeowner’s call. Id. at 50,

764 S.E.2d at 478-79.

      The defendant was convicted of driving while impaired.            On appeal, he

contended that the results of the warrantless blood test should have been suppressed

because the test was unconstitutional based upon the legal standard established in

Missouri v. NcNeely, a United States Supreme Court case that had been decided “just

over a month after the trial court ruled upon [the defendant’s] motion to suppress.”

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Id. at 54, 764 S.E.2d at 481. The defendant did “not challenge the trial court’s

findings of fact but argue[d] only that his case [was] similar to the situation presented

in Missouri v. McNeely[.]” Id. The defendant “focuse[d] on the lack of findings of fact

as to the time that it would have taken Deputy Fyle to obtain a search warrant for

the blood test.” Id.

       In the defendant’s appeal, he noted a number of factual issues that had not

been decided by the trial court. We declined to address these issues, explaining, in

pertinent part, as follows:

              [A]ll of these questions are squarely within the authority
              of the trial court to make the factual findings as to these
              issues and to make the appropriate legal conclusions upon
              those facts. It is the trial court that is entrusted with the
              duty to hear testimony, weigh and resolve any conflicts in
              the evidence, find the facts, and, then based upon those
              findings, render a legal decision, in the first instance, as to
              whether or not a constitutional violation of some kind has
              occurred.

              ....

              Defendant is correct that the trial court did not make any
              specific findings addressing the availability of a magistrate
              at the time of the incident and the probable delay in
              seeking a warrant, although Deputy Fyle did testify about
              this matter, but it seems . . . that the trial court considered
              the time factor in mentioning [that Deputy Fyle had a
              reasonable belief that there was an exigency based upon
              the] “additional time and uncertainties in how much
              additional time would be needed to obtain a search
              warrant.” Without findings of fact on these details,
              however, we cannot properly review this conclusion. We

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                                    Opinion of the Court



             must therefore remand this matter to the trial court for
             additional findings of fact as to the availability of a
             magistrate and the “additional time and uncertainties” in
             obtaining a warrant, as well as the “other attendant
             circumstances” that may support the conclusion of law that
             exigent circumstances existed.

Id. at 55-56, 57, 764 S.E.2d at 482, 483 (internal citations and quotation marks

omitted).

      Thus, because we were unable to properly review the trial court’s order, we

remanded the case to the trial court for additional findings of fact. Id. at 57, 764

S.E.2d at 483. Our decision was appealed to the Supreme Court. See State v.

McCrary, 368 N.C. 571, 780 S.E.2d 554 (2015). In its opinion, the Court stated the

following:

             [W]e remand to the Court of Appeals with instructions to
             that court to vacate the portion of the trial court’s . . . order
             denying defendant’s motion to suppress [the warrantless
             blood test] and further remand to the trial court for (1)
             additional findings and conclusions—and, if necessary—a
             new hearing on whether the totality of the events
             underlying defendant’s motion to suppress gave rise to
             exigent circumstances, and (2) thereafter to reconsider, if
             necessary, the judgments . . . entered[.]

Id. at 571-72, 780 S.E.2d at 554.

      Here, the trial court similarly did not make factual findings on several issues

that were integral to the question of whether a Miranda violation had occurred. Nor

— as discussed above — did the trial court fully apply the correct legal standard


                                              - 28 -
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                                  Opinion of the Court



applicable to this issue. Therefore, we are presently unable to determine whether

Miranda warnings were required at the time of Defendant’s 18 August statement in

response to Sergeant Schlegelmilch’s questioning.

       Because trial courts have “institutional advantages over appellate courts in the

application of facts to fact-dependent legal standards,” we hold that a determination

as to whether Sergeant Schlegelmilch was acting as a law enforcement officer and

engaged in custodial interrogation of Defendant under the principles articulated in

Davis “should, in the first instance, be made by the trial court.” McKinney, 361 N.C.

at 64-65, 637 S.E.2d at 876 (citation and quotation marks omitted). We therefore

vacate the portions of the Suppression Order relating to the 18 August oral statement

and remand to the trial court for additional findings of fact and conclusions of law

along with a new hearing, if necessary, on that issue.

II.   2 September Letter

       We reach a different result with regard to the statements contained in the 2

September letter written by Defendant from jail to Sergeant Schlegelmilch. The

record reveals that while Defendant was being held in the Harnett County Detention

Center following his arrest the decision was made to initiate military discharge

proceedings against him. The discharge process began on 25 August 2011. On 31

August 2011, Captain Lett hand-delivered a notice of separation to Defendant. That

same day, Defendant signed a memorandum stating, in pertinent part, that he

                                            - 29 -
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                                 Opinion of the Court



desired to waive his “right to consult with a qualified representative from Trial

Defense Services and wish[ed] to continue immediately with the proceedings.”

      While Defendant was in jail, he exchanged a number of letters with Sergeant

Schlegelmilch, several of which were given to law enforcement officers. Sergeant

Schlegelmilch wrote a letter to Defendant dated 31 August 2011, which read as

follows:

            I hope today is a good day for you. I got your computer but
            can’t get it to work [right]. Not sure why. But I will keep
            trying. Next time you see your lawyer ask him if he can do
            a power of [attorney] from you for me so I can help take
            care of your stuff for you and your mom.

            I love talking to your mom she is such a great person. She
            is like my best friend. You are lucky to have her as your
            mom.

            Be careful what you tell the other inmates they aren’t the
            most honest people and they will tell the police in order to
            help themselves.

            I really want to [know] why all this took place will you tell
            me the real reason this all happened it can’t be just over a
            break in. I am going to try to go to your court date on the
            6th if I can.

            Hope your visit from Cpt. Lett went well. If you have any
            questions let me [know] and I will get you the answers.

            So what do you do to pass the time? I think you should
            [write] a book about your life I would love to read it. Who
            [knows] we could get it published.



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                                   Opinion of the Court



             I have one other question. Why him you [knew] him and
             worked out together were drugs involved? We got to get
             you down to at least a murder 2 charge.

             Be strong and know we are always thinking about you!!

             Becky Schlegelmilch

      Defendant replied to Sergeant Schlegelmilch’s questions in a letter dated 2

September 2011 in which he gave the following account of Carlisle’s death: After he

had witnessed Carlisle in the act of breaking into the 102 Carmichael Drive home,

Blackett lured Carlisle back to the residence by telling him that Blackett was

interested in buying drugs from him. Upon returning to 102 Carmichael Drive,

Carlisle soon realized that he had been induced to return there on false pretenses.

He attempted to flee, but Defendant “choked him out and took him to the ground.”

Blackett then began to beat Carlisle. At that point, Defendant handcuffed Carlisle,

questioned him about the robbery, and began beating him when he denied being

involved.   Once Carlisle finally admitted to having taken part in the break-in,

Defendant responded that Carlisle would “get[ ] a second chance” and that they would

not report him to the police.

      Defendant argues that this letter should have been suppressed because the

letter from Sergeant Schlegelmilch asking him to explain how Carlisle had actually

died constituted custodial interrogation.       We are satisfied, however, that the

circumstances under which Defendant’s letter was written did not implicate

                                             - 31 -
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                                      Opinion of the Court



Miranda. First, we note that Defendant has failed to cite any caselaw in support of

the proposition that questioning conducted through such an exchange of letters can

constitute custodial interrogation for purposes of Miranda. Nor has our own research

revealed any legal authority in support of such an argument.

       Furthermore, when Defendant responded to Sergeant Schlegelmilch’s letter,

he was in the midst of being discharged from the military. While Defendant was not

formally removed from Alpha Company until 14 September 2011, the record makes

clear that Defendant was aware of the discharge proceedings at the time he

responded to Sergeant Schlegelmilch’s letter and was not contesting them. In short,

these circumstances simply do not amount to the type of coercive environment that

Miranda was intended to address.3

                                        Conclusion

       For the reasons stated above, we (1) affirm the portions of the Suppression

Order denying Defendant’s motion to suppress the statements made by him to

detectives on 16 and 17 August 2011 and in the 2 September 2011 letter to Sergeant

Schlegelmilch; (2) vacate the portion of the order denying Defendant’s motion to

suppress the 18 August 2011 oral statement made to Sergeant Schlegelmilch; and (3)




       3 We also observe that the letter from Sergeant Schlegelmilch was not written on official
letterhead, was very informal in nature, and was signed “Becky.”

                                                - 32 -
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                                  Opinion of the Court



remand for additional findings of fact, conclusions of law, and — if necessary — a new

hearing as to whether the 18 August 2011 oral statement was made during custodial

interrogation such that Miranda warnings were required.

      AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH
      INSTRUCTIONS.

      Judge INMAN concurs.

      Judge BRYANT concurs in the result only.




                                            - 33 -
