IN THE MATTER OF:
R.H. Durham County
No. 04 J 56
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Michael J. Reece, for juvenile-appellant.
HUDSON, Judge.
The court adjudicated juvenile delinquent and placed him under
court supervision for committing misdemeanor larceny. He appeals,
and as explained below, we affirm.
The State's evidence tends to show that the fourteen-year-old
juvenile and his mother lived in a house with juvenile's sister and
two other males. One of the males reported to juvenile's mother
that his DVD player was missing. Juvenile's mother reported the
matter to the police, as well as her suspicion that the juvenile
may have taken it. An officer came to the house on 7 February 2004
and questioned juvenile in his mother's presence. Juvenile denied
having taken anything.
On 11 February 2004, Sergeant Will Oakley of the JuvenileDivision of the Durham County Sheriff's Department, contacted
juvenile's mother and obtained her consent to talk to juvenile at
his school. At the school, juvenile gave a statement to Sergeant
Oakley
confessing that he took the DVD player and sold it for
$25.00 so he could buy his girlfriend flowers and a teddy bear.
Juvenile's sole contention on appeal is that the court erred
by denying his motion to suppress his confession on the ground he
was not advised of his juvenile rights in compliance with N.C. Gen.
Stat. § 7B-2101 and the North Carolina and United States
constitutions. The statute provides:
(a) Any juvenile in custody must be advised
prior to questioning:
(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. Gen. Stat. § 7B-2101(a) (2003). These warnings, consistent
with Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706-
707 (1966), apply only when the juvenile is in custody. State v.
Gaines, 345 N.C. 647, 661-62, 483 S.E.2d 396, 405, cert. denied,
522 U.S. 900, 139 L. Ed. 2d 177 (1997). Our Supreme Court has
clarified that the appropriate inquiry to make in determining
whether one is “in custody” is whether, based upon the totality ofthe circumstances, “there was a formal arrest or restraint on
freedom of movement of the degree associated with a formal arrest.”
State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001)
(internal citations omitted). The trial court's determination as
to whether or not one is in custody is a conclusion of law and our
review of that determination is de novo. State v. Crudup, 157 N.C.
App. 657, 659, 580 S.E.2d 21, 23 (2003).
Juvenile objected to admission of the statement. During voir
dire, Officer Oakley testified that after obtaining the permission
of juvenile's mother to speak to him, he went to the principal's
office at the school and requested to speak to juvenile. He wore
his badge and a gun when he and the juvenile went into an office at
the school. Officer Oakley identified himself and the reason for
wanting to talk to juvenile. He told juvenile that he was not
under arrest. He further explained that the juvenile could leave
and return to class at any time and that regardless of what
juvenile told him that day, he would not arrest juvenile.
Juvenile testified that when he came to the principal's office
and met Officer Oakley, he felt intimidated and that he did not
leave the room because he was afraid the officer would call his
mother and his departure would arouse suspicion. On cross
examination, juvenile testified that the officer did not place him
under arrest and did not threaten him. He also testified that the
officer did tell him he could leave, and also told him that he did
not have to talk to the officer.
After hearing arguments of counsel, the court stated: Well, the evidence is pretty clear that the
officer told [R] that he was free to leave.
[R] knew he was free to leave. He chose not
to leave because he didn't want the officer to
call his mother and tell her that. He didn't
want to _ he was afraid that if he left, he
would cause suspicion, but that's not _ that
doesn't make it a custody.
Thereupon, the court denied the motion to suppress.
The trial court appeared to conclude that because juvenile was
“free to leave” the room, he was not in custody. Under the “formal
arrest” test articulated by the Supreme Court in Buchanan, we reach
the same conclusion. See State v. Kornegay, 149 N.C. App. 390,
395, 562 S.E.2d 541, 545, appeal dismissed and disc. review denied,
355 N.C. 497, 564 S.E.2d 51 (2002). The evidence is undisputed
that (1) the officer did not place juvenile under arrest or
threaten him with arrest, (2) the officer did tell juvenile that he
was free to leave at any time, and (3) the officer told juvenile
that he did not have to talk to the officer. Under these
circumstances, we conclude juvenile was not in custody at the time
he made the inculpatory statement. We overrule juvenile's
assignments of error related to the admission of this statement.
Affirmed.
Judges MCGEE and LEVINSON concur.
Report per Rule 30(e).
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