in the Court of Appeals 14 January 2017.
by Defendant from judgment entered 18 August 2017 by Judge
Paul C. Ridgeway in Superior Court, Wake County. No. 15 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General Tracy Nayer, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Aaron Thomas Johnson, for Defendant.
Israel Rivera ("Defendant") appeals from his 18
August 2017 conviction for taking indecent liberties with a
child. For the reasons stated below, we dismiss his appeal.
Factual Basis and Procedure
early fall of 2015, Defendant was living in Raleigh with his
wife, his wife's parents, and his minor children.
Defendant's nine-year-old daughter ("daughter")
was a close friend of a ten-year-old girl ("G.")
who lived nearby. G. was a regular visitor at Defendant's
house, and also had a close relationship with Defendant. On
22 September 2015, Defendant's birthday, he came home
from work between 4:30 p.m. and 5:00 p.m. Defendant
celebrated his birthday at home with his family and G. by
having dinner and watching a movie together. During the
movie, Defendant's daughter and G. sat on the arms of an
oversized armchair while Defendant sat in the seat of the
chair-a blanket covered their laps. According to G., while
they were watching the movie, Defendant moved his left hand
under the blanket to her genital region, and touched her
genitals both over and under her underwear. The touching
continued for five to ten minutes, until Defendant's wife
announced that Defendant's birthday cake was ready to eat
and everyone went into the kitchen to eat cake. G. went home
after eating the cake, but did not report the alleged
touching to anyone that evening.
daughter went to G.'s house the next morning, 23
September 2015, and G. told her what had happened the night
before. G. testified that Defendant's daughter told G.
"to tell [G.'s] parents about what happened[,
]" so they both went to G.'s parents' bedroom to
report the alleged abuse. G. first told her father, and he
then told her mother. G.'s parents immediately walked
over to Defendant's house, where they encountered
Defendant's wife and told her what G. had told them.
G.'s parents called the police, and officers were
dispatched to investigate the accusations. Detective Kevin
Hubard ("Detective Hubard") of the Raleigh Police
Department's Juvenile Unit interviewed G. at the police
station later that day.
interviewing G., Detective Hubard and two additional officers
went to Defendant's house, between 6:00 p.m. and 7:00
p.m. on 23 September 2015, to question Defendant about the
allegations. After Detective Hubard talked to Defendant, and
explained the accusations, Defendant and his wife agreed to
drive to the police station in order to be interviewed. Once
they arrived at the police station, Detective Hubard
interviewed Defendant in one room, while another detective
talked with Defendant's wife in another room. Detective
Hubard again informed Defendant that the interview was
voluntary, and Defendant again agreed to be interviewed. The
interview, which was recorded on video, began at
approximately 8:00 p.m. on 23 September 2015, and lasted
"at least an hour."
forty minutes into the interview, Defendant began to indicate
that he "guess[ed] it [was] possible" that he had
improperly touched G. the night before. Defendant stated:
"I don't remember, I guess I must have because she
says, it must have happened," "she's too close
to me," "I want to move on from this[.]"
However, Defendant vacillated between indicating that he had,
or possibly could have, sexually assaulted G.; stating that
he did not remember doing anything; and stating that he
"would never" do something like that. At
approximately 8:39 p.m., Detective Hubard suggested Defendant
write an "apology" to G.'s parents, and
Defendant agreed to do so. Detective Hubard gave Defendant
paper and a pen, and left the interview room around 8:42 p.m.
to allow Defendant to write the "apology."
Defendant wrote a short statement in which he indicated that
he was sorry for having hurt G. However, while he was alone
in the interview room writing the "apology," he
also made conflicting verbal statements concerning his
culpability. Detective Hubard returned to the interview room
and read the "apology" aloud. Defendant still
continued to give conflicting statements concerning whether
he did, or could have, molested G. Defendant asked to speak
with his wife, and she was brought into the interview room
and left alone with Defendant. Defendant's vacillation
continued in his conversation with his wife. Defendant's
wife left the interview room, and Defendant was then arrested
at approximately 9:26 p.m. on 23 September 2015.
was indicted for sexual offense with a child and taking
indecent liberties with a child. Defendant's trial began
on 14 August 2017, and pretrial motions were heard that
morning before jury selection. At this pretrial motions
hearing, Defendant's attorney informed the trial court
that he wanted to move to suppress the inculpatory statements
Defendant had made in his interview with Detective Hubard.
The State objected, informing the trial court that Defendant
had not filed a motion to suppress and that it had received
no notice that Defendant was intending to move to suppress
this evidence. Based upon Defendant's violation of the
statutes governing motions to suppress, the trial court ruled
that it would not consider Defendant's purported pretrial
"motion to suppress," and the proceedings continued
the direct questioning of Detective Hubard, the State sought
to introduce the video recording of Defendant's interview
with Detective Hubard at the police station. Defendant's
attorney informed the trial court that he would like to be
heard, and the jury was sent out of the courtroom. Defendant
asked the trial court's
permission to voir dire [Detective Hubard] on the question
of the last thing he said on direct examination about his
decision to arrest, and this relates to my earlier motion
to suppress. I believe in the context of this interview,
[Detective Hubard] had made a decision to arrest and it
occurred sometime before his final decision to put my
client in custody.
attorney stated: "I would submit to the Court that
[Detective Hubard] had made a decision to arrest [Defendant]
at about 8:40 -- 8:40 p.m., where my client had decided to
make an apology." The trial court stated that, in its
opinion, it did not make "any difference what subjective
decisions [Detective Hubard] made about arresting or not
arresting" until those decisions were expressed to
Defendant; the trial court then overruled Defendant's
objection. Defendant's attorney responded: "Fair
enough," and the trial proceeded. The video of
Defendant's inculpatory statements was admitted into
evidence and published to the jury. When asked if he had any
further objections, Defendant's attorney stated that he
did not, and the trial continued. Defendant was found not
guilty of a sex offense with a child, but was convicted on 18
August 2017 of taking indecent liberties with a child.
argues that the "trial court erred, and committed plain
error, by admitting [Defendant's] statements [because
Defendant] did not receive Miranda warnings[,
]" and because Defendant's "statements were
involuntary." Defendant has waived any right of
appellate review of these arguments, and we dismiss.
Waiver of Right of Appeal
arguments are based upon alleged violations of the Fifth and
Fourteenth Amendments of the Constitution of the United
States. Article 53, Chapter 15A of the North Carolina General
Statutes, N.C. Gen. Stat. § 15A-971, et
seq. ("Article 53"), "governs the
suppression of unlawfully obtained evidence in our trial
courts." State v. Miller, __ N.C. __, __, 814
S.E.2d 81, 83 (2018). As our Supreme Court said:
N.C. G.S. § 15A-974(a)(1) states that, "[u]pon
timely motion, evidence must be suppressed if . . . [i]ts
exclusion is required by the Constitution of the United
States [.]" And N.C. G.S. § 15A-979(d) specifies
that "[a] motion to suppress evidence made pursuant to
this Article is the exclusive method of challenging
the admissibility of evidence" on constitutional
grounds. (Emphasis added.) A defendant generally "may
move to suppress evidence only prior to trial," N.C.
G.S. § 15A-975(a) (2017), subject to a few, narrow
exceptions that permit a defendant to move during trial,
see id. § 15A-975(b), (c) (2017).
In other words, the governing statutory framework requires a
defendant to move to suppress at some point during
the proceedings of his criminal trial. Whether he moves to
suppress before trial or instead moves to suppress during
trial because an exception to the pretrial motion requirement
applies, a defendant cannot move to suppress for the first
time after trial. . . . . When a defendant files a
motion to suppress before or at trial in a manner that is
consistent with N.C. G.S. § 15A-975, that
motion gives rise to a suppression hearing and hence to an
evidentiary record pertaining to that defendant's
suppression arguments. But when a defendant, such as
defendant here, does not file a ...