in the Court of Appeals 15 January 2019.
by defendant from judgments entered 6 February 2017 by Judge
C. Winston Gilchrist in Harnett County Harnett County, Nos.
11 CRS 53886, 13 CRS 424, 16 CRS 651 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kathleen N. Bolton and Assistant Attorney General
Joseph L. Hyde, for the State.
& Petersen, P.A., by Ann B. Petersen, for
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 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.
and Procedural Background
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.
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:
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
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
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 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
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
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.
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 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
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
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
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 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
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
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 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 ...