State v. Saldierna

IN THE SUPREME COURT OF NORTH CAROLINA
No. 271PA15

Filed 21 December 2016

STATE OF NORTH CAROLINA

v.
FELIX RICARDO SALDIERNA

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 775 S.E.2d 326 (2015), reversing an order

denying defendant’s motion to suppress entered on 20 February 2014 by Judge

Forrest D. Bridges, vacating a judgment entered on 4 June 2014 by Judge Jesse B.

Caldwell, both in Superior Court, Mecklenburg County, and remanding the case for

further proceedings. Heard in the Supreme Court on 16 February 2016.

Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney
General, for the State-appellant.

Goodman Carr, PLLC, by W. Rob Heroy, for defendant-appellee.

EDMUNDS, Justice.

Defendant, a juvenile, asked to telephone his mother while undergoing

custodial questioning by police investigators. The call was allowed, after which the

interrogation continued. The trial court denied defendant’s motion to suppress the

statements he made following the call. We conclude that defendant’s request to call

his mother was not a clear invocation of his right to consult a parent or guardian
 STATE V. SALDIERNA

Opinion of the Court

before proceeding with the questioning. Accordingly, we reverse the decision of the

Court of Appeals that reversed the trial court’s order denying the motion to suppress.

After several homes around Charlotte were broken into on 17 and 18 December

2012, Charlotte-Mecklenburg Police arrested defendant on 9 January 2013. At the

time, defendant was sixteen and one-half years old. The arresting officers took

defendant to a local police station where Detective Kelly (Kelly) interrogated him.

Before beginning her interrogation, Kelly provided defendant with both English and

Spanish versions of the Juvenile Waiver of Rights Form routinely used by the

Charlotte-Mecklenburg Police Department to explain the protections afforded

juveniles under N.C.G.S. § 7B-2101. These forms advised defendant that he had the

right to remain silent; that anything he said could be used against him; that he had

the right to have a parent, guardian, or custodian present during the interview; that

he had the right to speak to a lawyer and to have a lawyer present to help him during

questioning; and that a lawyer would be provided at no cost prior to questioning if he

so desired. Kelly also read these rights in English to defendant, pausing after each

to ask if defendant understood. Defendant initialed the English form beside each

enumerated right and the section that noted:

I am 14 years old or more and I understand my rights as
explained by Officer/Detective Kely [sic]. I DO wish to
answer questions now, WITHOUT a lawyer, parent,
guardian, or custodian here with me. My decision to
answer questions now is made freely and is my own choice.
No one has threatened me in any way or promised me
special treatment. Because I have decided to answer

-2-
 STATE V. SALDIERNA

Opinion of the Court

questions now, I am signing my name below.

The words “I DO wish to answer questions now” on the form are circled. Only after

defendant signed the form did Detective Kelly begin the interrogation.

Kelly had gone no further than noting the time and date for the audio recording

when defendant asked, “Um, can I call my mom?” Detective Kelly offered her cellular

telephone to defendant and allowed him to step out of the booking room to make the

call. Detective Kelly could hear defendant but was not sure if he placed one call or

two. Defendant did not reach his mother but did speak to someone else. However,

because defendant spoke Spanish while on the phone, Kelly could not provide any

details concerning the nature of the conversation. Upon defendant’s return to the

booking area, Kelly resumed her questioning. Defendant did not object and made no

further request to contact anyone. During the ensuing interview, defendant

confessed that he had been involved in the break-ins.

Defendant was indicted, inter alia, 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

-3-
 STATE V. SALDIERNA

Opinion of the Court

these rights both in English and Spanish and having the rights read to him in English

by Kelly, indicated that he understood them. In addition, the trial court found that

defendant informed Kelly that he wished to waive his juvenile rights and signed the

form memorializing that wish. Although defendant then unsuccessfully sought to

contact his mother, the court found:

17. That Defendant did not at that time or any other
time indicate that he changed his mind regarding
his desire to speak to Detective Kelly. That
Defendant did not at that time or any other time
indicate that he revoked his waiver.

18. That Defendant only asked to speak to his mother.

19. That Defendant did not make his interview
conditional on having his mother present or
conditional on speaking to his mother.

20. That Defendant did not ask to have his mother
present at the interview site.

21. That, upon review of the totality of the
circumstances, the Court finds that Defendant’s
request to speak to his mother was at best an
ambiguous request to speak to his mother.

22. That at no time did Defendant make an
unambiguous request to have his mother present
during questioning.

23. That Defendant never indicated that his mother was
on the way or could be present during questioning.

24. That Defendant made no request for a delay of
questioning.

-4-
 STATE V. SALDIERNA

Opinion of the Court

Based on those findings, the trial court determined that the interview was

conducted in a manner consistent with N.C.G.S. § 7B-2101 and did not violate any of

defendant’s state or federal rights. The court concluded as a matter of law that the

State met its burden of establishing by a preponderance of the evidence that

defendant “knowingly, willingly, and understandingly waived his juvenile rights.”

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 supervised probation.

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. State v. Saldierna, ___

N.C. App. ___, ___, 775 S.E.2d 326, 334 (2015). The Court of Appeals recognized that

the trial court correctly found that defendant’s statement asking to telephone his

mother was ambiguous at best. Id. at ___, 775 S.E.2d at 331. However, it went on to

conclude that, unlike the invocation of Miranda rights by an adult, a juvenile need

not make a clear and unequivocal request in order to exercise his or her right to have

a parent present during questioning. Id. at ___, 775 S.E.2d at 333-34. Instead, the

-5-
 STATE V. SALDIERNA

Opinion of the Court

Court of Appeals held that when a juvenile between the ages of fourteen and eighteen1

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. Id. at ___, 775 S.E.2d at 334. The Court of Appeals based this

distinction on the fact that Miranda rights are rooted in the United States

Constitution, while the right to have a parent present during custodial interrogations

is an additional statutory protection for juveniles who, by virtue of their age, lack the

life experience and judgment of an adult. Id. at ___, 775 S.E.2d at 333.

This Court granted the State’s petition for discretionary review. We review an

opinion of the Court of Appeals for errors of law. N.C. R. App. P. (16)(a). “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 are binding on appeal if 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 are reviewed de novo, State v. Ortiz–Zape, 367 N.C.

1 Before 2015, the pertinent part of the statute read: “When the juvenile is less than
14 years of age, no in-custody admission or confession resulting from interrogation may be
admitted into evidence unless the confession or admission was made in the presence of the
juvenile’s parent, guardian, custodian, or attorney.” N.C.G.S. § 7B-2101(b) (2013). In 2015,
the General Assembly amended subsection 7B-2101(b) to raise the relevant age limit to
“less than 16 years of age.” Act of May 26, 2015, ch. 58, sec. 1.1, 2015 N.C. Sess. Laws 126,
126.

-6-
 STATE V. SALDIERNA

Opinion of the Court

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).

In evaluating whether the trial court correctly denied defendant’s motion to

suppress, we first must consider the threshold question of whether defendant invoked

his right to have his mother present during the custodial interview. We must also

consider whether defendant knowingly and voluntarily waived his rights under

section 7B-2101 of the North Carolina General Statutes and under the constitutions

of North Carolina and the United States, thus making his confession admissible. We

begin with the former inquiry.

The State argues that defendant’s request to call his mother was not an

invocation of his right to have a parent present under N.C.G.S. § 7B-2101(a)(3). The

State points out that defendant simply asked to call his mother, which the detective

readily permitted. He never requested his mother’s presence or indicated that he

wished to suspend the interview until he could reach her. The State contends that

when a juvenile’s statement is ambiguous, law enforcement officers have no

additional duty to ascertain whether the juvenile is invoking his statutory rights or

whether they may continue questioning the minor.

In response, defendant argues that, according to the plain language of N.C.G.S.

§ 7B-2101, the interview should have ceased until defendant spoke with his mother

or indicated his desire to proceed without her, even though the precise import of his

question to the detective was unclear. Should we disagree with this statutory

-7-
 STATE V. SALDIERNA

Opinion of the Court

interpretation, defendant makes an argument under the United States Constitution

that we should extend the rationale in J.D.B. v. North Carolina, 564 U.S. 261, 264-

65, 131 S. Ct. 2394, 2398-99, 180 L. Ed. 2d 310, 318-19 (2011), which held that the

age of a juvenile is a factor in determining whether he or she was in police custody

for purposes of Miranda, and hold that reviewing courts must take into account the

juvenile’s age and maturity level when determining the admissibility of juvenile

confessions.

As to defendant’s statutory argument, N.C.G.S. § 7B-2101(a) establishes that

juveniles must be advised of certain rights prior to a custodial interrogation. The

statute codifies the juvenile’s Miranda rights and adds the additional protection that

the juvenile has the right to have a parent, guardian, or custodian present during

questioning. N.C.G.S. § 7B-2101(a) (2015). A statement made during custodial

interrogation is admissible only if the juvenile knowingly, willingly, and

understandingly has waived his constitutional and statutory rights. Id. § 7B-2101(d)

(2015).

This Court has recognized that a juvenile’s statutory right to have a parent

present during custodial interrogation is analogous to the constitutional right to

counsel and therefore is entitled to the same protection. State v. Smith, 317 N.C. 100,

106, 343 S.E.2d 518, 521 (1986), abrogated in part on other grounds by State v.

Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). In Smith, we noted that the

Supreme Court of the United States held in Edwards v. Arizona, 451 U.S. 477, 101

-8-
 STATE V. SALDIERNA

Opinion of the Court

S. Ct. 1880, 68 L. Ed. 2d 378 (1981), that after a defendant expresses a desire to deal

with police only through counsel, he or she may not be questioned further until

counsel is present or the defendant reinitiates communication with law enforcement.

317 N.C. at 106, 343 S.E.2d at 521. This Court in Smith applied that same principle

in the context of juvenile law to hold that, when a juvenile unambiguously requested

that his mother be brought to the police station, officers were required to cease all

questioning until the mother arrived or the juvenile reinitiated discussions. Id. at

107, 343 S.E.2d at 522. These cases leave no doubt that a juvenile’s constitutional

rights under Miranda and statutory rights under N.C.G.S. § 7B-2101(a) are of equal

weight and given equal consideration.

Nevertheless, the Supreme Court of the United States also has held that, when

an individual under interrogation mentions an attorney with such vagueness that

law enforcement investigators are left unsure whether the comment is an invocation

of the right to counsel, police have no duty to ask clarifying questions and may

continue with the interrogation. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct.

2350, 2355, 129 L. Ed. 2d 362, 371 (1994) (holding that invocation of the right to

counsel “requires, at a minimum, some statement that can reasonably be construed

to be an expression of a desire for the assistance of an attorney” (quoting McNeil v.

Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209, 115 L. Ed. 2d 158, 169 (1991))).

In other words, the objective test set out in Davis considers whether a reasonable

officer under the circumstances would have understood the defendant’s statement to

-9-
 STATE V. SALDIERNA

Opinion of the Court

be an invocation of his or her right to have an attorney present. Davis, id. at 459, 114

S. Ct. at 2355, 129 L. Ed. 2d at 371.

This Court has adopted the analytical framework found in Davis when

determining whether a defendant has invoked his or her constitutional rights. For

instance, in State v. Boggess, 358 N.C. 676, 600 S.E.2d 453 (2004), we held that the

defendant’s statement to police that “[i]f y’all going to treat me this way, then I

probably would want a lawyer” did not constitute an invocation of the defendant’s

right to an attorney. Id. at 687, 600 S.E.2d at 460; see also State v. Hyatt, 355 N.C.

642, 655-56, 566 S.E.2d 61, 70-71 (2002) (holding that the defendant did not invoke

his right to counsel when a nearby officer “could have heard” the defendant whisper

to his father that “I want you to get me a lawyer”), cert. denied, 537 U.S. 1133, 123 S.

Ct. 916, 154 L. Ed. 2d 823 (2003). Similarly, in State v. Waring, 364 N.C. 443, 701

S.E.2d 615 (2010), cert. denied, 565 U.S. 832, 132 S. Ct. 132, 181 L. Ed. 2d 53 (2011),

we held that the defendant’s statement that he “was not going to snitch” when

questioned about his accomplice’s name was not an unambiguous invocation of his

right to remain silent. Id. at 473, 701 S.E.2d at 635.

We have also applied Davis when the suspect under interrogation is a juvenile.

State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121

S. Ct. 1379, 149 L. Ed. 2d 305 (2001). In Golphin, the juvenile defendant was

apprehended after he and his brother committed an armed robbery, stole a vehicle,

and murdered two police officers. Id. at 380, 386-87, 533 S.E.2d at 183, 187. After

-10-
 STATE V. SALDIERNA

Opinion of the Court

he was detained, the defendant waived his juvenile rights under section 7B-2101 and

gave a statement to an agent of the State Bureau of Investigation. Id. at 449, 533

S.E.2d at 224. When the agent specifically asked the defendant whether he was

aware of an incident involving a Jeep, the defendant responded that “he didn’t want

to say anything about the [J]eep. He did not know who it was or he would have told

us.” Id. at 451, 533 S.E.2d at 225. Upon further questioning, however, the defendant

admitted that his brother shot at a Jeep that was following them. Id. at 387, 449,

533 S.E.2d at 187, 224.

On appeal, the defendant argued that the agent violated his constitutional

right to silence by continuing to question him after he requested not to discuss the

Jeep. Id. at 448-49, 533 S.E.2d at 224. In rejecting the defendant’s argument, we

applied the Davis analysis and concluded that the defendant’s statement was not an

unambiguous request to remain silent. Id. at 450-51, 533 S.E.2d at 225. Instead, the

statement appeared to be an acknowledgment that, had he known who was involved,

the defendant would have shared that information freely. Id. at 451, 533 S.E.2d at

225. As a result, it was reasonable for the agent to continue the questioning because

the defendant failed clearly to invoke any of his rights. Id. at 451-52, 533 S.E.2d at

225. In reaching this conclusion, we confirmed both that the Davis analysis applies

when evaluating whether a juvenile defendant has invoked his or her juvenile rights

during a custodial interrogation and that law enforcement officers are not required

-11-
 STATE V. SALDIERNA

Opinion of the Court

to seek clarification of ambiguous statements made by juvenile defendants under

interrogation. See id. at 451, 533 S.E.2d at 225.

Because a juvenile’s statutory right to have a parent or guardian present

during questioning is entitled to the same protection as the constitutional right to

counsel, we must apply Davis in determining whether defendant’s statement—“Um,

can I call my mom?”—was a clear and unambiguous invocation of his right to have

his parent or guardian present during questioning. We conclude that it was not.

Although 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. Instead, defendant simply asked to call her. When the

request was made, Kelly immediately loaned defendant her personal cellular

telephone so that he could make the call. Defendant’s purpose for making the call

was never established. Whatever his reasons, defendant did not “articulate his desire

to have [a parent] present sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for [a parent],”

especially in light of the fact that defendant had just signed the portion of the juvenile

rights form expressing his desire to proceed on his own. Davis, 512 U.S. at 459, 114

S. Ct. at 2355, 129 L. Ed. 2d at 371. As the trial court pointed out, defendant’s

statement was at best an ambiguous invocation of his right to have his mother

present. As in Davis, without an unambiguous, unequivocal invocation of defendant’s

right under N.C.G.S. § 7B-2101(a)(3), law enforcement officers had no duty to ask

-12-
 STATE V. SALDIERNA

Opinion of the Court

clarifying questions or to cease questioning. Because defendant’s juvenile statutory

rights were not violated, we reverse the decision of the Court of Appeals to the

contrary.

Nevertheless, the admissibility of defendant’s confession is a two-pronged

inquiry, as noted above. Even though we have determined that defendant’s N.C.G.S.

§ 7B-2101(a)(3) right was not violated, defendant’s confession is not admissible unless

he knowingly, willingly, and understandingly waived his rights. N.C.G.S. § 7B-

2101(d). The Court of Appeals did not reach this question and instead erroneously

resolved the case upon the first prong. Saldierna, ___ N.C. App. at ___, 775 S.E.2d at

334. Because we have concluded that defendant’s right under subdivision 7B-

2101(a)(3) was not violated, we remand this case to the Court of Appeals for

consideration of the validity of defendant’s waiver of his statutory and constitutional

rights.

REVERSED AND REMANDED.

Justice BEASLEY dissenting.

I disagree with the majority and would hold that defendant’s statement, “Um,

Can I call my mom?” was an unambiguous invocation of his statutory right to have a

parent present during custodial interrogation. Assuming arguendo that defendant’s

statement was ambiguous, I also disagree with the majority’s conclusion that because

defendant’s request was ambiguous his statutory rights under N.C.G.S. § 7B-2101

-13-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

were not violated. Because I would affirm the Court of Appeals’ holding that law

enforcement officers are required to ask questions to clarify the desire and intent of

a juvenile who makes an ambiguous statement relating to his statutory right to have

a parent present, I respectfully dissent.

Subsection 7B-2101(a) of the North Carolina General Statutes provides that

juveniles must be advised of certain enumerated rights before being subjected to

custodial interrogation. As explained by the majority, “The statute codifies the

juvenile’s Miranda rights and adds the additional protection that the juvenile has the

right to have a parent, guardian, or custodian present during questioning.” See

N.C.G.S. § 7B-2101(a) (2015).2 As such, the right to have a parent, guardian, or

custodian present, id. § 7B-2101(a)(3), “is not the codification of a federal

constitutional right, but rather our General Assembly’s grant to the juveniles of

North Carolina of a purely statutory protection in addition to those identified in

Miranda.” State v. Saldierna, ___ N.C. App. ___, ___, 775 S.E.2d 326, 332 (2015)

2Subsection 7B-2101(a) states that prior to being questioned “[a]ny juvenile in
custody must be advised”:
(1) That the juvenile has a 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.

N.C.G.S. § 7B-2101(a) (2015).

-14-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

(citing, inter alia, State v. Fincher, 309 N.C. 1, 12, 305 S.E.2d 685, 692 (1983) (stating,

for purposes of determining the appropriate prejudice standard, that “[t]he failure to

advise [a juvenile] defendant of his right to have a parent, custodian or guardian

present during questioning is not an error of constitutional magnitude because this

privilege is statutory in origin and does not emanate from the Constitution”)). The

statute also establishes that a juvenile’s statement cannot be admitted into evidence

unless the court “find[s] that the juvenile knowingly, willingly, and understandingly

waived” his constitutional and statutory rights. N.C.G.S. § 7B-2101(d) (2015).

As the Court of Appeals stated, “[W]ith regard to a defendant’s Miranda rights

to remain silent and to have an attorney present during a custodial interrogation, the

law is clear.” Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 332. A defendant must

unambiguously invoke his or her Miranda rights, and law enforcement officers have

no obligation to clarify a defendant’s ambiguous statements. See Davis v. United

States, 512 U.S. 452, 459, 461-62, 114 S. Ct. 2350, 2355-56 (1994) (“[T]he suspect

must unambiguously request counsel,” and law enforcement officers are not required

to ask clarifying questions when a suspect’s statement regarding counsel is

ambiguous); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885 (1981)

(holding that law enforcement officers must immediately cease questioning upon a

suspect’s unambiguous request for counsel and cannot reinitiate interrogation until

counsel arrives or the suspect “initiates further communication”). In State v. Golphin,

352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379 (2001),

-15-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

this Court extended this rule to juveniles, holding that a juvenile defendant’s right to

remain silent must be unambiguously invoked.3 Id. at 451-52, 533 S.E.2d at 225.

To determine whether a defendant unambiguously invoked his Miranda

rights, this Court applies the standard set forth in Davis: “Invocation of the Miranda

right to counsel ‘requires, at a minimum, some statement that can reasonably be

construed to be an expression of a desire for the assistance of an attorney.’ ” Davis,

512 U.S. at 459, 114 S. Ct. at 2355 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178,

111 S. Ct. 2204, 2209 (1991)). The Court goes on to say that the inquiry is based on

what a “reasonable officer in light of the circumstances” would believe the statement

to mean. Id. at 459, 114 S. Ct. at 2355 (citations omitted). Here defendant asked to

speak to his mother prior to questioning.4 I agree with the Court of Appeals that

Detective Kelly’s question, “You want to call her now before we talk?” is telling. See

Saldierna, ___ N.C. App. at ___ n.6, 775 S.E.2d at 334 n.6 (“Kelly’s question indicates

3 Golphin did not address a juvenile defendant’s right to have a parent present under N.C.G.S.
§ 7B-2101(a)(3).
4 The following conversation occurred after Detective Kelly advised defendant of his rights:

[Defendant]: Um, Can I call my mom?

[Det. Kelly]: Call your mom now?

[Defendant]: She’s on her um. I think she is on her lunch
now.

[Det. Kelly]: You want to call her now before we talk?

[Det. Kelly to other officers]: He wants to call his mom.

(Emphases added.)

-16-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

that she believed [defendant] might be asking to delay the interview, at least until he

had a chance to speak to his mother.”). Implicit in the protections afforded by

subdivision 7B-2101(a)(3) is that law enforcement officers understand whether a

juvenile intends to invoke the statutory rights. The majority states that defendant

“never gave any indication that he wanted to have [his mom] present for his

interrogation . . . . Instead, defendant simply asked to call her.” Thus, according to

the majority, “Defendant’s purpose for making the call was never established.”

Despite the majority’s contention, the reasonable conclusion under the circumstances

is that defendant wanted his mother present. Why else would defendant want to call

his mom “now before [he] talked” if not to seek her advice and protection? The

majority and the Court of Appeals agree that defendant’s statement was not an

unambiguous invocation of his statutory right to have a parent present. 5 However,

defendant’s statement was “sufficiently clear[ ] that a reasonable police officer in the

circumstances would understand the statement to be a request” to have his mother

5 Under the law as it currently stands, I understand how the majority and the Court of Appeals
reached the conclusion that defendant’s statement was ambiguous. See State v. Branham, 153 N.C.
App. 91, 98-99, 569 S.E.2d 24, 28-29 (2002) (concluding that the juvenile defendant unambiguously
invoked his right when he had officers write on the juvenile rights form that he wanted his mother
present before questioning); see also State v. Smith, 317 N.C. 100, 106, 343 S.E.2d 518, 521 (1986)
(finding that the juvenile defendant unambiguously invoked his right when he requested that his mom
be brought to the station), abrogated in part on other grounds by State v. Buchanan, 353 N.C. 332, 543
S.E.2d 823 (2001). But see State v. Oglesby, 361 N.C. 550, 558-59, 648 S.E.2d 819, 824 (2007)
(Timmons-Goodson, J., dissenting) (stating, in regards to a juvenile defendant’s request to call his
aunt, that “it is uncontested that . . . the juvenile’s confession in this case would be inadmissible if the
individual requested had fallen into the requisite category”). For the reasons stated more thoroughly
below, however, juvenile defendants are provided greater protections than their adult counterparts,
especially in regards to a juvenile’s statutory right and protection to have a parent present.

-17-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

present before questioning. Davis, 512 U.S. at 459, 114 S. Ct. at 2355. In light of this

unambiguous request, all questions should have immediately ceased until

defendant’s mother was present or defendant reinitiated the conversation. See

Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885.

The cases discussed above only address a defendant’s constitutional Miranda

rights, not his statutory rights. In regard to a juvenile’s statutory right to have a

parent present, this Court has only addressed a juvenile’s unambiguous invocation of

the right. See State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), abrogated in part

on other grounds by State v. Buchanan, 353 N.C. 332, 340, 543 S.E.2d 823, 828 (2001).

In Smith this Court stated that law enforcement officers must cease questioning

when a juvenile unambiguously invokes his statutory right to have a parent present.

Id. at 108, 343 S.E.2d at 522; see State v. Branham, 153 N.C. App. 91, 95, 569 S.E.2d

24, 27 (2002). This Court has not, however, “considered the implications of a

juvenile’s ambiguous reference” to his statutory right to have a parent present.

Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 333. The legislature intended to afford

juveniles greater protection in subdivision (a)(3) than those afforded by a juvenile’s

constitutional Miranda rights codified in N.C.G.S. § 7B-2101(a)(1), (2), and (4). See

The Final Report of the Juvenile Code Revision Committee 183 (Jan. 1979)

(commenting that the Committee added “[subdivision] (3) . . . to assure that the

juvenile may have his parent present during questioning if he desires and [stating

that subdivision (3)] is an addition to case law requirements” found in N.C.G.S. § 7B-

-18-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

2101(a)(1), (2), and (4)). Moreover, when viewed in its entirety, section 7B-2101

demonstrates our General Assembly’s acknowledgement that juveniles are especially

vulnerable when subjected to custodial interrogation. See N.C.G.S. § 7B-2101(b)

(providing that, in essence, a juvenile under the age of sixteen cannot waive his right

to have a parent or attorney present); see also Act of May 26, 2015, ch. 58, sec. 1.1,

2015 N.C. Sess. Laws 126, 126 (increasing the age of juveniles protected by subsection

(b) from less than fourteen to less than sixteen years).

According to the majority, this Court’s decision in Smith—applying the

Miranda framework set forth in Davis, 512 U.S. at 459, 114 S. Ct. at 2355, to a

juvenile’s unambiguous invocation of his right to have a parent present—indicates

that a juvenile’s statutory right under subdivision (a)(3) can only be afforded as much

protection as a juvenile’s constitutional Miranda rights. As such, the majority

concludes that the Miranda rules also apply to juveniles who make ambiguous

statements regarding their right to have a parent present. I disagree. I agree with

the Court of Appeals that by enacting N.C.G.S. § 7B-2101(a)(3), the legislature

demonstrated its intent to afford a juvenile greater protection when attempting to

invoke his or her right to have a parent present than when attempting to invoke his

or her Miranda rights. Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 333 (“[R]eview

of the provisions of section 7B-2101 reveals an understanding by our General

Assembly that the special right guaranteed by subsection (a)(3) is different from those

rights discussed in Miranda and, in turn, reflects the legislature’s intent that law

-19-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

enforcement officers proceed with great caution in determining whether a juvenile is

attempting to invoke this right.”).

Although this Court has held that a “juvenile’s right . . . to have a parent

present during custodial interrogation[ ] is entitled to similar protection [as an adult’s

right to have an attorney present],” Smith, 317 N.C. at 106, 343 S.E.2d at 521, it does

not follow that the protections afforded to juveniles under subdivision 7B-2101(a)(3)

are capped at, and therefore cannot exceed, those provided under Miranda. As

previously discussed, Smith involved a situation in which a juvenile defendant

unambiguously requested that his mother be brought to the police station before he

was questioned. Id. at 102, 343 S.E.2d at 519. This Court held that in such

circumstances, the Miranda framework of Davis applied and required law

enforcement officers to immediately cease questioning. Id. at 106-07, 343 S.E.2d at

521-22. This Court applied principles established under the Fifth and Sixth

Amendments to the “resumption of custodial interrogation” under section 7B-2101.6

Id. at 106, 343 S.E.2d at 521 (noting that the Miranda cases “are not controlling”).

The “resumption of custodial interrogation” principles apply in the context of an

unambiguous invocation of rights. See Davis, 512 U.S. at 459-61, 114 S. Ct. at 2355-

56 (holding that law enforcement officers must cease questioning after an

6 Smith discussed a juvenile’s rights under to N.C.G.S. § 7A-595, which is the original
codification of the rights afforded to juveniles in section 7B-2101. Section 7A-595 was repealed in 1999
and recodified as part of the Juvenile Code. See Act of Oct. 22, 1998, ch. 202, secs. 5, 6, 1997 N.C.
Sess. Laws (Reg. Sess. 1998) 695, 742, 809. The two sections are substantively the same.

-20-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

unambiguous invocation of the right to counsel and cannot resume questioning until

counsel is present or the defendant reinitiates communication). This Court did not

address ambiguous statements, nor did it affirmatively hold that the protections

afforded by subdivision (a)(3) are capped at those afforded to adults under Miranda.

Therefore, I agree with the Court of Appeals’ conclusion that the “case law regarding

invocation of the Miranda rights guaranteed by the federal Constitution and codified

in subsections 7B-2101(a)(1), (2), and (4) does not control our analysis of a juvenile’s

ambiguous statement possibly invoking the purely statutory right granted by our

State’s General Assembly in section 7B-2101(a)(3).” Saldierna, ___ N.C. App. at ___,

775 S.E.2d at 332.

It is well established that juveniles differ from adults in significant ways and

that these differences are especially relevant in the context of custodial interrogation.

See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 2699 (1988)

(plurality opinion) (“Inexperience, less education, and less intelligence make the

teenager less able to evaluate the consequences of his or her conduct while at the

same time he or she is much more apt to be motivated by mere emotion or peer

pressure than is an adult.”); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S. Ct. 1209,

1212 (1962) (stating that juveniles are “not equal to the police in knowledge and

understanding of the consequences of the questions and answers being recorded and

. . . [are] unable to know how to protect [their] own interests or how to get the benefits

of [their] constitutional rights” (emphasis added)); Haley v. Ohio, 332 U.S. 596, 599-

-21-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

600, 68 S. Ct. 302, 304 (1948) (plurality opinion) (“[W]e cannot believe that a lad of

tender years is a match for the police in such a contest [as custodial interrogation]. .

. . He needs someone on whom to lean lest the overpowering presence of the law, as

he knows it, crush him.”). As discussed by the United States Supreme Court

[a] child’s age is far more than a chronological fact.
It is a fact that generates commonsense conclusions about
behavior and perception. Such conclusions apply broadly
to children as a class. And, they are self-evident to anyone
who was a child once himself, including any police officer
or judge.
Time and again, this Court has drawn these
commonsense conclusions for itself. We have observed that
children generally are less mature and responsible than
adults, that they often lack the experience, perspective,
and judgment to recognize and avoid choices that could be
detrimental to them, that they are more vulnerable or
susceptible to . . . outside pressures than adults, and so on.
Addressing the specific context of police interrogation, we
have observed that events that would leave a man cold and
unimpressed can overawe and overwhelm a lad in his early
teens. Describing no one child in particular, these
observations restate what any parent knows—indeed,
what any person knows—about children generally.
Our various statements to this effect are far from
unique. The law has historically reflected the same
assumption that children characteristically lack the
capacity to exercise mature judgment and possess only an
incomplete ability to understand the world around them.

J.D.B. v. North Carolina, 564 U.S. 261, 272-73, 131 S. Ct. 2394, 2403 (2011) (citations

and internal quotation marks omitted).

North Carolina courts have also acknowledged that “[j]uveniles are awarded

-22-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

special consideration in light of their youth and limited life experience.” State v.

Oglesby, 361 N.C. 550, 557, 648 S.E.2d 819, 823 (2007) (Timmons-Goodson, J.,

dissenting) (citing In re Stallings, 318 N.C. 565, 576, 350 S.E.2d 327, 333 (1986)

(Martin, J., dissenting)); see In re K.D.L., 207 N.C. App. 453, 459, 700 S.E.2d 766, 771

(2010) (“[W]e cannot forget that police interrogation is inherently coercive—

particularly for young people.” (citations omitted)), disc. rev. denied, 365 N.C. 90, 706

S.E.2d 478 (2011). As discussed by Justice Harry C. Martin in his dissent to this

Court’s decision in In re Stallings, “Juveniles are not, after all miniature adults. Our

criminal justice system recognizes that their immaturity and vulnerability

sometimes warrant protections well beyond those afforded adults. It is primarily for

that reason that a separate juvenile code with separate juvenile procedures exists.”

318 N.C. at 576, 350 S.E.2d at 333 (Martin, J., dissenting). Justice H. Martin goes

on to explain that the Juvenile Code demonstrates “legislative intent to provide

broader protections to juveniles.” See id. at 577, 350 S.E.2d at 333. Furthermore, “at

least two empirical studies show that ‘the vast majority of juveniles are simply

incapable of understanding their Miranda rights and the meaning of waiving those

rights.’ ” Oglesby, 361 N.C. at 559 n.3, 648 S.E.2d at 824 n.3 (citation omitted); see

Cara A. Gardner, Recent Developments, Failing to Serve and Protect: A Proposal for

an Amendment to a Juvenile’s Right to a Parent, Guardian, or Custodian During a

Police Interrogation after State v. Oglesby, 86 N.C. L. Rev. 1685, 1698-99 (2008)

[hereinafter Failing to Serve and Protect] (“[R]esearch has revealed that only 20.9%

-23-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

of juveniles understand the standard Miranda warnings . . . . [and] many d[o] not

understand that [their right to an attorney means that] the attorney could actually

be present during police questioning rather than at some later time. . . . This may

indicate that juveniles in North Carolina also have difficulty understanding that they

have the right to have a parent . . . present during an interrogation rather than at

some later time.” (footnotes omitted)). Therefore, it is reasonable to believe that

juveniles should be afforded greater protections when seeking to have a parent

present. See Failing to Serve and Protect at 1695 (“The reason a juvenile in a

custodial interrogation has a right to the presence of a parent, guardian, or custodian

is presumably so that the adult may assist in protecting the juvenile’s rights.”).

For these reasons, I would hold that when a juvenile makes an ambiguous

statement relating to his or her statutory right to have a parent present during a

custodial interrogation, law enforcement officers are required to ask clarifying

questions to determine whether the juvenile desires to have his or her parent present

before the juvenile answers any questions. Specifically, Miranda precedent is not

binding on a juvenile’s statutory rights under N.C.G.S. § 7B-2101(a)(3), and I believe

that a juvenile can be afforded greater protection than that afforded under Miranda

when attempting to invoke his or her statutory right. Additionally, as discussed

above, juveniles are not able to fully understand the consequences of their actions

and are more likely to submit to pressure. Most adults are nervous and apprehensive

when stopped by a uniformed officer even in relatively trivial situations such as

-24-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

routine traffic stops. Imagine then the apprehension, fear, and confusion of a

teenager who finds himself under the power and authority of a law enforcement

officer. Faced with this pressure, it stands to reason that many juveniles will be

unable to unequivocally and unambiguously articulate their desire to have a parent

present before police interrogation begins and will certainly lack the ability to

appreciate the legal significance of this statutory protection. According to the

majority, defendant “never gave any indication that he wanted to have [his mother]

present for his interrogation, nor did he condition his interview on first speaking with

her. Instead, defendant simply asked to call her.” This standard expects far too much

of the typical juvenile being held in police custody and does not comport with our

legislature’s intent to protect juveniles’ rights.

I also disagree with the State’s argument that requiring law enforcement

officers to ask clarifying questions would place an unreasonable burden on them. The

burden, if any, would be slight. In this case, Detective Kelly could have asked a

simple question to clarify defendant’s intent when he said, “Um, Can I call my mom?”

or to ascertain his desire after he was unable to contact her, such as “Do you want

your mother present before I ask you any questions?” Defendant’s response of “no”

would leave the detective free to continue the custodial interrogation, whereas the

response of “yes” would be considered an unambiguous invocation of his right, and

the interrogation must therefore immediately cease. Regardless, “the structure of the

juvenile code” is “persuasive evidence . . . that the legislature intended to favor

-25-
 STATE V. SALDIERNA

BEASLEY, J., dissenting

juvenile protections over law enforcement expediency.” In re Stallings, 318 N.C. at

576, 350 S.E.2d at 333 (emphasis added). Thus, because the majority’s holding fails

to take into account the significant differences between juveniles and adults and

improperly caps the protection of juveniles’ statutory rights under section 7B-2101, I

respectfully dissent.

-26-