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, Nos. 13 CRS 201161,
201164, 202210, 202213, The issue addressed on remand is the
validity of defendant's waiver of his statutory and
Attorney General Roy Cooper, by Assistant Attorney General
Jennifer St. Clair Watson, for the State.
Goodman Carr, PLLC, by W. Rob Heroy, for defendant.
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 denying defendant's motion to suppress his
statement made to an interrogating officer, and we reverse,
vacate, and remand.
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. 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.
[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 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
. . . .
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
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.
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
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 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.
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
[t]he North Carolina Juvenile Code provides additional
protection for juveniles. Juveniles who are "in
custody" must be advised of the following before
(1) That the juvenile has the right to remain silent;
(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)).
admitting into evidence any statement resulting from
custodial interrogation,  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 required to 'find that
the juvenile knowingly, willingly, and understandingly waived
the juvenile's rights.' " (quoting N.C. G.S.
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).
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 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
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
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
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 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 ...