              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-251

                                Filed: 1 May 2018

Wake County, Nos. 13 CRS 6234–37

STATE OF NORTH CAROLINA

             v.

JONATHAN SANTILLAN


      Appeal by defendant from judgments entered 1 September 2015 and 12

October 2015 by Judge Paul G. Gessner in Wake County Superior Court. Heard in

the Court of Appeals 1 November 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Danielle
      Marquis Elder, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for defendant.


      DIETZ, Judge.


      Defendant Jonathan Santillan appeals his convictions and sentences

stemming from a gang-related home invasion in which Santillan and others

murdered an innocent working couple. The victims lived in a home once occupied by

a rival gang member who was the intended target. Santillan was fifteen years old at

the time of the crime.

      As explained below, the trial court’s order denying Santillan’s motion to

suppress fails to address a key underlying fact: that a law enforcement officer
                                  STATE V. SANTILLAN

                                   Opinion of the Court



communicated with Santillan between the time Santillan invoked his right to counsel

and the time he agreed to waive his right to counsel. Without findings acknowledging

and addressing the impact of that communication, this Court cannot meaningfully

review whether Santillan’s waiver of his right to counsel was voluntary. We therefore

remand this issue to the trial court for further proceedings. We reject the remainder

of Santillan’s challenges to his convictions.

      With respect to Santillan’s sentence, the State concedes that the trial court

failed to make sufficient findings to support the two sentences of life without parole.

We therefore vacate those sentences and remand for a new sentencing hearing for

those convictions, if one is necessary after the trial court resolves the issues

concerning the suppression order.

                          Facts and Procedural History

      On 5 January 2013, Maria Saravia Flores and Jose Mendoza Flores were shot

to death in their home during a gang-related attack. The attackers kicked in the

couple’s front door and sprayed every room in the home with gunfire from an AK-47

rifle and a .45 caliber handgun. Mr. Flores was shot sixteen times while lying on the

couch and Ms. Flores was shot seven times in the back and legs at the doorway to the

kitchen.

      The couple were not the intended targets of the shooting. They lived in a home

previously occupied by a gang member named “Sancho.” Sancho had been the target



                                          -2-
                                STATE V. SANTILLAN

                                  Opinion of the Court



of a previous shooting by a rival gang member named “Trigger,” who was

accompanied by his brother, Moises, and two teenagers, Isrrael Vasquez and

Defendant Jonathan Santillan.

      At the time of this earlier shooting, Sancho refused to provide much

information to law enforcement about his attackers. But after reports of the Floreses’

killings, Sancho contacted law enforcement and told them he believed he was the

intended victim. He explained that he had lived at that residence a year earlier,

before the Floreses moved in, and “Trigger” had visited him when he lived there. Law

enforcement contacted Trigger’s girlfriend, who identified Moises, Vasquez, and

Santillan as Trigger’s associates, and informed police that they carried a .45 caliber

handgun and an AK-47 rifle.

      Police found Santillan and Vasquez in the attic of Vasquez’s house and

arrested them. After searching the attic, law enforcement also found an AK-47, a .45

caliber handgun, and several rounds of .45 caliber ammunition. The .45 caliber

ammunition had scratch marks on the shell casings to obscure identifying

information, and those scratch marks matched those found on casings at the Floreses’

home and the earlier shooting involving Sancho.

      On 15 January 2013, officers interrogated Santillan in four separate interviews

over an eight-hour period. At the time, Santillan was fifteen years old. Santillan

initially denied his involvement in both the Sancho shooting and the Floreses’



                                         -3-
                                 STATE V. SANTILLAN

                                  Opinion of the Court



killings, but later confessed to being present at the Sancho shooting. Santillan denied

any involvement in the Floreses’ killings, but he gave a detailed description of the

murders and made a sketch of the Floreses’ home based on information he claimed to

have learned from Moises. Law enforcement videotaped each of the four interviews.

      The State indicted Santillan on two counts of first degree murder, conspiracy

to commit murder, first degree burglary, conspiracy to commit burglary, and

possession of a firearm with altered serial number. At trial, the State sought to admit

Santillan’s videotaped interrogation and his sketch of the Floreses’ home into

evidence. Santillan moved to suppress this evidence on the ground that it was

obtained in violation of his Sixth Amendment rights. The trial court denied the

motion.

      Over Santillan’s objection, the trial court also admitted rap lyrics found in a

notebook in Santillan’s room. The lyrics describe someone “kick[ing] in the door” and

“spraying” bullets with an AK-47.

      The jury convicted Santillan on all charges. The trial court sentenced him to

two consecutive sentences of life without parole and other, lesser sentences. Santillan

timely appealed.




                                         -4-
                                 STATE V. SANTILLAN

                                   Opinion of the Court



                                       Analysis

 I.    Santillan’s Motion to Suppress

       Santillan first challenges the denial of his motion to suppress, arguing that the

trial court’s order lacks key findings concerning law enforcement’s communications

with him after he invoked his right to counsel. As explained below, we agree that the

trial court’s order did not address key factual issues and we therefore remand for the

trial court to do so.

       Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).

       “[D]uring custodial interrogation, once a suspect invokes his right to counsel,

all questioning must cease until an attorney is present or the suspect initiates further

communication with the police.” State v. Quick, 226 N.C. App. 541, 543, 739 S.E.2d

608, 610 (2013). The questioning prohibited under this rule includes “not only express

questioning, but also any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.” Id. at 544, 739 S.E.2d at

611.



                                          -5-
                                 STATE V. SANTILLAN

                                  Opinion of the Court



      “Factors that are relevant to the determination of whether police should have

known their conduct was likely to elicit an incriminating response include: (1) the

intent of the police; (2) whether the practice is designed to elicit an incriminating

response from the accused; and (3) any knowledge the police may have had concerning

the unusual susceptibility of a defendant to a particular form of persuasion.” State v.

Fisher, 158 N.C. App. 133, 142–43, 580 S.E.2d 405, 413 (2003), aff’d, 358 N.C. 215,

593 S.E.2d 583 (2004).

      In Quick, for example, the defendant invoked his right to counsel. Later, an

officer told him that the police had more warrants to serve on him, that an attorney

would not be able to help with these new warrants, and that defendant would be

served with the warrants regardless of whether the attorney was there or not. 226

N.C. App. at 544, 739 S.E.2d at 611. The defendant then responded, “We need to talk.”

Id. at 542, 739 S.E.2d at 610. The officer again read the defendant his Miranda rights

and the defendant signed a waiver form. Id. The trial court found that the officer

knew or should have known his comments would elicit an incriminating response and

therefore amounted to further questioning. This Court affirmed the trial court’s

suppression order based on that finding. Id. at 544, 739 S.E.2d at 611.

      By contrast, in State v. Thomas, the defendant invoked his right to counsel and

the officer responded that “he should be sure and tell his attorney [that] he had a

chance to help himself and did not do so.” 310 N.C. 369, 377, 312 S.E.2d 458, 463



                                         -6-
                                  STATE V. SANTILLAN

                                   Opinion of the Court



(1984). Five minutes later, the defendant told the officer he wanted to make a

statement and agreed to waive his right to counsel. Id. Our Supreme Court affirmed

the denial of the motion to suppress, holding that “we are unable to conclude that [the

officer] should have known that his ‘off-hand’ remark was reasonably likely to

provoke defendant into making an incriminating statement.” Id. at 377–78, 312

S.E.2d at 463.

      With this precedent in mind, we turn to the trial court’s suppression order in

this case. As noted above, our review of the denial of a motion to suppress is strictly

limited to the facts found by the trial court. Cooke, 306 N.C. at 134, 291 S.E.2d at 619.

In other words, “it is not our role to make factual findings, but rather, only to consider

whether the trial court has engaged in the appropriate legal analysis, made findings

of fact which are supported by competent evidence, and made conclusions of law

supported by those findings.” State v. Council, 232 N.C. App. 68, 75, 753 S.E.2d 223,

229 (2014).

      Here, the video recording of Santillan’s interrogation shows that Santillan

initially waived his right to counsel and spoke to the officers. But, after lengthy

questioning by law enforcement, Santillan re-invoked his right to counsel and the

officers ceased their interrogation and left the room. During that initial questioning,

law enforcement told Santillan they were arresting him on drug charges. The officers

also told Santillan they suspected he was involved in the Floreses’ killings, but they



                                          -7-
                                  STATE V. SANTILLAN

                                   Opinion of the Court



did not tell him they were charging him with those crimes, apparently leaving

Santillan under the impression that he was charged only with “drug possession.”

      Then, before being re-advised of his rights and signing a second waiver form,

Santillan engaged in the following exchange with Chief Johnson, who was standing

outside the interrogation room:

         SANTILLAN: Excuse me. Excuse me, sir. When can I make my
         phone call? When can I make my phone call?

         CHIEF JOHNSON: In about two hours.

         SANTILLAN: All right. So, what are—

         CHIEF JOHNSON: (Inaudible) booked.

         SANTILLAN: Huh?

         CHIEF JOHNSON: You got to be booked.

         SANTILLAN: What do you mean?

         CHIEF JOHNSON: You’ve been arrested for a shooting.

         SANTILLAN: I had nothing to do with that.

         CHIEF JOHNSON: All right. You’ll be told. Hold on.

         SANTILLAN: No, they already told me, but I already told them
         what I know.

         CHIEF JOHNSON: Son, you f***** up.

         SANTILLAN: I did?

         CHIEF JOHNSON: You did.



                                          -8-
                                   STATE V. SANTILLAN

                                    Opinion of the Court



          SANTILLAN: Nah, I didn’t. So, they have to get transport?
          They’re going to get transport? They’re getting transport right
          now?

          CHIEF JOHNSON: Oh, yeah.

          SANTILLAN: All right. Thank you.

                                 (Santillan sits back down.)

          SANTILLAN: Aw, f*** this. I know (inaudible). F*** this, man.
          They better put me in protective custody, dog. (Inaudible).

Later, officers re-entered the interrogation room and Santillan told them that he

again wanted to waive his right to counsel and make a statement.

       The trial court’s order does not address this exchange with Chief Johnson

quoted above. The court’s order finds that, during the initial interview, Santillan

“read and reviewed a juvenile rights waiver form” and “eventually signed the rights

form” before speaking to the officers. The court’s findings do not expressly

acknowledge that Santillan later invoked his right to counsel, at which point the

officer ceased questioning him and left the room. But that finding can be inferred

from the court’s next finding, which notes that “[a]pproximately 40 minutes later,

[Santillan] knocked on the door of the interview room and asked to speak with the

investigators again. Investigator Scott Barefoot returned to the room with Chief

Richard Johnson . . . and they explained that they cannot talk with him anymore

unless he waives his rights. They then go through another juvenile rights waiver

form . . . , which [Santillan] also signed.”


                                           -9-
                                  STATE V. SANTILLAN

                                   Opinion of the Court



      These findings are insufficient for this Court to meaningfully review the trial

court’s legal conclusions. Because the trial court did not even address the exchange

between Santillan and Chief Johnson in its findings, this Court cannot examine the

relevant legal factors applicable to this exchange such as “(1) the intent of the police;

(2) whether the practice is designed to elicit an incriminating response from the

accused; and (3) any knowledge the police may have had concerning the unusual

susceptibility of a defendant to a particular form of persuasion.” Fisher, 158 N.C. App.

at 142–43, 580 S.E.2d at 413.

      When a trial court’s order fails to resolve fact issues necessary to assess the

trial court’s legal conclusions, “an appellate court may remand the cause for

appropriate proceedings without ordering a new trial.” State v. Lang, 309 N.C. 512,

523–24, 308 S.E.2d 317, 323 (1983). We therefore remand this matter for a new

suppression hearing with instructions for the trial court to address the exchange

between Santillan and Chief Johnson in light of the relevant factors identified in this

opinion. The trial court, based on those new findings, may again deny the motion to

suppress, leaving Santillan’s convictions intact, or may grant the motion to suppress

in whole or in part and order a new trial. See State v. Hammonds, __ N.C. __, __, 804

S.E.2d 438, 441 (2017).

      Santillan also argues that, even ignoring Chief Johnson’s communication with

him, his second waiver was involuntary because of factors including his young age,



                                          - 10 -
                                       STATE V. SANTILLAN

                                        Opinion of the Court



the officers’ interrogation tactics, and his lack of sleep, food, and medication. See State

v. Martin, 228 N.C. App. 687, 691–92, 746 S.E.2d 307, 311 (2013). The trial court’s

order addressed these factors and, based on facts supported by competent evidence

in the record, the court concluded that Santillan’s “actions and statements show

awareness and cognitive reasoning during the entire interview” and Santillan “was

not coerced into making any statements, but rather made his statements voluntarily.”

Because the trial court’s fact findings on these issues are supported by competent

evidence, and those findings in turn support the court’s conclusions, we reject these

other challenges to the trial court’s determination of voluntariness.1

II.    Admission of the Rap Lyrics

       Santillan next challenges the trial court’s admission of rap lyrics found in a

notebook in Santillan’s room. The lyrics, which were written before the Floreses were

killed, described someone “kick[ing] in the door” and “spraying” bullets with an AK-

47 in a manner that resembled how the Floreses were killed. Santillan argues that

the rap lyrics are irrelevant, prejudicial, and improper character evidence in violation

of Rules 401, 403, and 404(b) of the North Carolina Rules of Evidence.

       Santillan concedes that his trial counsel did not object to the admission of the

rap lyrics and we therefore review the question of admissibility for plain error. State



       1 We recognize that some of these findings are relevant to assessing whether Chief Johnson’s
statements to Santillan were likely to elicit an incriminating response. The trial court may, but need
not, supplement these findings on remand as well.

                                               - 11 -
                                  STATE V. SANTILLAN

                                   Opinion of the Court



v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). “For error to constitute plain

error, a defendant must demonstrate that a fundamental error occurred at trial.”

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To show that an

error was fundamental, a defendant must establish prejudice–that, after examination

of the entire record, the error had a probable impact on the jury’s finding that the

defendant was guilty.” Id. In other words, the defendant must “show that, absent the

error, the jury probably would have returned a different verdict.” Id. at 519, 723

S.E.2d at 335. In addition, plain error review is inapplicable to discretionary decisions

of the trial court, such as a decision to exclude evidence under Rule 403. State v.

Cunningham, 188 N.C. App. 832, 836–37, 656 S.E.2d 697, 700 (2008). We therefore

limit our review to Santillan’s challenge under Rules 401 and 404(b).

      Applying the plain error standard, we reject Santillan’s argument because he

fails to show that, absent the alleged error, the jury probably would have returned a

different verdict. The jury heard testimony establishing that the Floreses were

murdered with a .45 caliber handgun and an AK-47 rifle; that Trigger’s girlfriend

identified Santillan as someone who possessed those kinds of weapons; and that the

attic where police found Santillan contained guns and casings matching those from

the crime scene. Santillan also gave a statement to police from which the jury could

infer his involvement in the killings.




                                          - 12 -
                                        STATE V. SANTILLAN

                                         Opinion of the Court



        Santillan categorically asserts that the rap lyrics had “enormous prejudicial

effect,” but he does not explain why, had the rap lyrics not been admitted, the jury

probably would have rejected the State’s other evidence and found Santillan not

guilty. Accordingly, we hold that Santillan has failed to satisfy his burden to establish

plain error.2

        Santillan also asserts that his counsel was ineffective for failing to object to the

admissibility of this evidence. We decline to address this issue on direct appeal. This

Court will address the merits of an ineffective assistance of counsel claim “when the

cold record reveals that no further investigation is required.” State v. Thompson, 359

N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004). Where the claim raises “potential

questions of trial strategy and counsel’s impressions, an evidentiary hearing

available through a motion for appropriate relief is the procedure to conclusively

determine these issues.” State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544, 548

(2001). Our Supreme Court recently emphasized that whether defense counsel “made

a particular strategic decision remains a question of fact, and is not something which




        2  Because Santillan did not object to the lyrics’ admission into evidence, we have reviewed his
objection for plain error. However, Santillan timely objected to the State’s request to publish the rap
lyrics to the jury after they were admitted into evidence. The trial court’s decision to publish already-
admitted evidence to the jury is a matter that rests within the trial court’s sound discretion. State v.
Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986). Santillan has not shown that the court’s decision
to publish this admitted evidence was an abuse of discretion—that is, an act “so arbitrary that it could
not have been the result of a reasoned decision.” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1,
19 (2005).

                                                 - 13 -
                                 STATE V. SANTILLAN

                                   Opinion of the Court



can be hypothesized” by an appellate court on direct appeal. State v. Todd, 369 N.C.

707, 712, 799 S.E.2d 834, 838 (2017).

       Here, there is nothing in the record to indicate why Santillan’s counsel chose

not to object to the admission of the rap lyrics, whether there was a valid strategic

reason for that decision, or whether that decision was reasonable. Accordingly, we

dismiss this claim without prejudice to pursue it in a motion for appropriate relief.

Thompson, 359 N.C. at 123, 604 S.E.2d at 881.

III.   Sentencing under N.C. Gen. Stat. §§ 15A-1340.19A-C

       Finally, Santillan argues that the trial court erred by imposing two consecutive

sentences of life without parole without making sufficient fact findings. Specifically,

Santillan argues that, although the trial court listed each of the statutory mitigating

factors under N.C. Gen. Stat. § 15A-1340.19B(c), the court failed to expressly state

the evidence supporting or opposing those mitigating factors as required by State v.

Antone, 240 N.C. App. 408, 412, 770 S.E.2d 128, 130–31 (2015), and State v. James,

__ N.C. App. __, __, 786 S.E.2d 73, 83–84 (2016). On appeal, the State concedes that

the trial court erred by failing to make these findings.

       We agree with the parties that the trial court’s findings are insufficient under

Antone and James. We therefore vacate Santillan’s two sentences of life without

parole and remand for a new sentencing hearing.




                                          - 14 -
                                 STATE V. SANTILLAN

                                  Opinion of the Court



      Santillan also challenges the constitutionality of N.C. Gen. Stat. § 15A-

1340.19A et seq., both facially and as applied to him. Because we vacate his two life

sentences for insufficient factual findings, we need not address Santillan’s as-applied

challenge, which may be mooted based on the trial court’s new findings or the new

sentences imposed. Santillan’s facial challenge is precluded by this Court’s holding in

James, but we acknowledge that it is preserved for further review in our Supreme

Court if necessary. __ N.C. App. at __, 786 S.E.2d at 84.

                                     Conclusion

      In sum, we remand the trial court’s order denying Santillan’s motion to

suppress for additional proceedings consistent with this opinion. We find no plain

error with respect to Santillan’s evidentiary challenges and we dismiss Santillan’s

corresponding ineffective assistance of counsel claim without prejudice to pursue that

issue in a motion for appropriate relief. We vacate Santillan’s two sentences of life

without parole and remand for a new sentencing hearing with respect to those

convictions, should that sentencing hearing be necessary following resolution of the

remanded motion to suppress.

      REMANDED IN PART; NO PLAIN ERROR IN PART; DISMISSED IN PART;
      VACATED AND REMANDED IN PART.

      Judges ELMORE and INMAN concur.




                                         - 15 -
