Appeal by juvenile from order entered 13 December 2005 by
Judge Joseph M. Buckner and from order entered 24 January 2006 by
Judge M. Patricia Devine in Orange County District Court. Heard in
the Court of Appeals 11 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange, for the State.
Lisa Skinner Lefler for juvenile-appellant.
The juvenile J.B. ("Jake"),
(See footnote 1)
who was adjudicated delinquent,
appeals from the denial of his pretrial motion to suppress and a
disposition order requiring, inter alia, the payment of
restitution. We believe that In re J.L.B.M., 176 N.C. App. 613,
627 S.E.2d 239 (2006), is dispositive: Because the trial court
failed to make any findings of fact in support of its denial of the
motion to suppress, we must remand for entry of findings of fact.
In the absence of such findings, we are unable to effectively
review the trial court's ruling. With respect to Jake's challenge to the restitution order, we
find that, during the disposition phase, defense counsel accepted
the ordering of restitution in an amount not exceeding $500.00.
Accordingly, we find no basis for overturning the trial court's
order regarding restitution.
On 24 September 2005, break-ins occurred at two homes in
Chapel Hill, and various items were stolen, including a digital
camera. On the same day, Jake was interviewed by police because he
was seen "peeping" around the back of a residence in the same
neighborhood. Subsequently, the police received information that
Jake had passed along a digital camera to another student at his
Based on this information, Officer DiCostanzo of the Chapel
Hill Police Department went to the school to speak with Jake, who
at the time was a 13-year-old seventh grader enrolled in special
education classes. Jake was removed from class by a uniformed
school resource officer and escorted to a conference room.
Assembled in the room were Officer DiCostanzo, the school resource
officer, the assistant principal, and one of the principal's
interns. Once Jake arrived, the door to the conference room was
Officer DiCostanzo began by asking Jake whether he would agree
to answer questions about the recent break-ins. Jake agreed and
initially denied any wrongdoing. He acknowledged that he was in
the vicinity of the break-ins on the day in question, but claimedthat he was merely going door-to-door trying to be hired to do
Officer DiCostanzo then disclosed to Jake that the stolen
digital camera had been recovered. At this point, the assistant
principal began to encourage Jake to "do the right thing" and tell
the truth. Jake asked "if he got the stuff back was he still gonna
be in trouble." The officer replied that "it would help" to return
the items, but that nonetheless "this thing is going to court."
The officer also said that he could potentially seek an order to
hold Jake in juvenile detention prior to a trial.
Before Jake made any further statements, Officer DiCostanzo
told Jake that he was not under arrest, that he was free to leave,
and that he was not required to speak about the case. The officer
asked whether Jake understood that he was not under arrest and that
he did not have to speak, and he nodded "yes" in response. Jake
then explained to the officer the details of how he and a friend
broke into the two houses and stole a camera, a cell phone, and
jewelry. At the officer's request, Jake provided a written
statement admitting to the offenses.
After Jake finished the written statement, the school bell
rang, signaling the end of the school day. Officer DiCostanzo
concluded the interview and told Jake that he should leave so that
he would not miss his bus. The interview had lasted about 30 to 45
Officer DiCostanzo returned to the police station and picked
up one of his colleagues, Officer Hunter. Together, the twoofficers drove to Jake's residence, but found no one there. Jake,
however, soon arrived home on the school bus and invited the
officers inside to show them the stolen property. Officer
DiCostanzo explained that he would need a warrant to search the
house, since Jake could not provide valid consent.
Officer DiCostanzo then left to obtain a search warrant,
leaving Officer Hunter waiting outside the residence with Jake.
When Officer DiCostanzo returned with the search warrant, Jake
immediately handed the officers one of the stolen rings that he had
been keeping in his pocket. The officers then went inside the
house with Jake, and Jake proceeded to lead the officers to various
spots where he had hidden the stolen jewelry. Jake also disclosed
that he had thrown some jewelry on the top of a shed at a nearby
gas station. Officer DiCostanzo and Jake walked down to the gas
station and recovered the jewelry, which was still on the roof of
On 19 October 2005, the State filed two juvenile petitions,
one for each home he entered, alleging that Jake was a delinquent
juvenile for breaking and entering and larceny. Prior to the
adjudication and disposition hearing, Jake moved to suppress the
statements he made to Officer DiCostanzo on the grounds that he was
interrogated by police in a custodial setting without being
warnings and without having a parent or guardian
present. Jake also moved to suppress the physical evidence that he
turned over to police, contending that this evidence was "fruit of
the poisonous tree." The district court conducted a hearing on the motion to
suppress on 13 December 2005. Immediately following testimony from
both Officer DiCostanzo and Jake and without hearing oral argument
from counsel, the court orally "rule[d] that there is no custody
for purposes of this interrogation" and denied the motion to
suppress. The court subsequently entered a written order that
stated in its entirety: "After hearing evidence from investigator
Joe Dicostanzo [sic] and the juvenile, the juvenile's motion to
suppress statements and evidence seized is denied."
On 24 January 2006, the district court held an adjudication
and disposition hearing, at which Jake admitted the allegations in
the two juvenile petitions. Jake signed a transcript of admission,
but renewed his arguments with respect to the motion to suppress.
Based on Jake's admission, the court adjudicated Jake a delinquent
juvenile. During the disposition phase of the proceeding, the
court placed Jake on 12 months probation, with associated
conditions, and ordered Jake to pay approximately $500.00 in
restitution to the theft victims with the exact figure to be
determined by the district attorney's office. Jake timely appealed
to this Court.
In his first argument on appeal, Jake assigns error to the
trial court's denial of his motion to suppress evidence of his
statements to the police and the physical evidence uncovered as a
result of those statements. He contends that the statements and
evidence were obtained as a result of a custodial interrogationconducted in violation of N.C. Gen. Stat. § 7B-2101 (2005) and
without his having been advised of his rights under Miranda v.
, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
In addition to the constitutional rights set forth in Miranda
N.C. Gen. Stat. § 7B-2101 establishes mandatory procedures for the
custodial interrogation of juvenile suspects:
(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
(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
(b) 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. . . .
(c) If the juvenile indicates in any
manner and at any stage of questioning
pursuant to this section that the juvenile
does not wish to be questioned further, the
officer shall cease questioning.
(d) Before admitting into evidence any
statement resulting from custodial
interrogation, the court shall find that thejuvenile knowingly, willingly, and
understandingly waived the juvenile's rights.
N.C. Gen. Stat. § 7B-2101 (emphasis added). The rights provided by
both § 7B-2101 and Miranda
apply only if the juvenile is in
custody. State v. Gaines
, 345 N.C. 647, 661, 483 S.E.2d 396,
404-05, cert. denied
, 522 U.S. 900, 139 L. Ed. 2d 177, 118 S. Ct.
It is undisputed that Jake was 13 years old at the time of the
questioning and that no parent, guardian, custodian or attorney was
present during the time Jake made any statements. "Therefore, if
the juvenile's admissions were obtained during a custodial
interrogation, they would be inadmissible." J.L.B.M.
, 176 N.C.
App. at 624, 627 S.E.2d at 246.
The critical question before the trial court was thus whether
Jake was "in custody" at the time he made his statements. In
determining whether a suspect is in custody, "the appropriate
inquiry . . . is, based on the totality of the circumstances,
whether there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest." State v.
, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001) (internal
quotation marks omitted).
This inquiry is an objective one that requires us to consider
all the facts and circumstances from the perspective of a
reasonable person in the juvenile's position. In re W.R.
, __ N.C.
App. __, __, 634 S.E.2d 923, 926, temporary stay allowed
, 361 N.C.
167, 637 S.E.2d 544 (2006). While "the trial court should consider
the juvenile's age in ruling on the admissibility of a confession,. . . the youth of a juvenile 'will not preclude the admission of
his inculpatory statement absent mistreatment or coercion by the
police officers.'" Id.
(quoting State v. Fincher
, 309 N.C. 1, 8,
305 S.E.2d 685, 690 (1983)).
As our Supreme Court explained with respect to motions to
When the competency of evidence is
challenged and the trial judge conducts a voir
dire to determine admissibility, the general
rule is that he should make findings of fact
to show the bases of his ruling. If there is
a material conflict in the evidence on voir
dire, he must
do so in order to resolve the
conflict. If there is no material conflict in
the evidence on voir dire, it is not error to
admit the challenged evidence without making
specific findings of fact, although it is
always the better practice to find all facts
upon which the admissibility of the evidence
depends. In that event, the necessary
findings are implied from the admission of the
State v. Phillips
, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980)
(internal citations omitted). "Findings and conclusions are
required in order that there may be a meaningful appellate review
of the decision." State v. Horner
, 310 N.C. 274, 279, 311 S.E.2d
281, 285 (1984).
More specifically, our Supreme Court has held with respect to
the admissibility of a confession: "In the establishment of a
factual background by which to determine whether a confession meets
the tests of admissibility, the trial court must make the findings
of fact." State v. Barnes,
264 N.C. 517, 521, 142 S.E.2d 344, 346
(1965). "Absent findings of fact, this Court is unable to saywhether [the trial court] committed error in admitting the
contested confession." Id.
at 522, 142 S.E.2d at 347.
In this case, the trial court made no findings of fact _ oral
or written _ to explain what facts and circumstances it relied upon
to determine that a reasonable person in Jake's position _ a 13-
year-old seventh grader attending special education classes _ would
have believed he was free to leave the conference room while being
questioned by Officer DiCostanzo. Based upon our review of the
transcript, which included testimony by Jake in support of the
motion to suppress, we believe the record contains a material
conflict in the evidence such that we cannot presume facts to
support the trial court's ruling.
The issues presented by this case are not straightforward.
The State points to Officer DiCostanzo's assurances to Jake that he
was not under arrest, was free to leave, and was not in custody.
Yet, Jake had already made an incriminating statement prior to
those assurances. With respect to statements made following the
officer's representations, Jake argues that he had already been
told that his case would go to court regardless of what else
occurred and that he was subject to being held in detention pending
any trial. The details of what was said and what a reasonable
juvenile in Jake's situation would have understood are in dispute.
Under very similar circumstances, this Court recently held
that _ in the absence of findings of fact _ "we cannot discern
whether the juvenile's admissions were made in response to
custodial interrogation in violation of the juvenile'sconstitutional and statutory rights." J.L.B.M.
, 176 N.C. App. at
625, 627 S.E.2d at 246. The Court "therefore remand[ed] for
findings on whether the juvenile was in custody at the time of his
questioning, and whether his statements were the result of
, 627 S.E.2d at 246-47.
Without findings of fact, we are not in a position to
determine whether this case more closely resembles In re Hodge
N.C. App. 102, 568 S.E.2d 878, appeal dismissed and disc. review
, 356 N.C. 613, 574 S.E.2d 681 (2002), or W.R.
this Court concluded that a juvenile, who was interviewed in his
home with his mother present, was not in custody when the
investigator prefaced her questions by saying "you don't have to
talk to me" and "I am not going to arrest you." 153 N.C. App. at
108-09, 568 S.E.2d at 882. In contrast, in W.R.
, this Court held
that the 14-year-old juvenile was in custody when (1) he was
escorted to the assistant principal's office where he was
repeatedly questioned over the course of 30 minutes by the
principal, the assistant principal, and the school resource
officer, who was a member of the Greensboro Police Department, and
(2) at some point in the interview, he was searched by the officer.
__ N.C. App. at __, 634 S.E.2d at 926. This Court noted "[t]here
is nothing in the record to indicate the juvenile was free to
leave," and held "[g]iven the totality of these circumstances, a
reasonable person standing in the place of the juvenile would have
believed that he was restrained in his movement to the degree
associated with a formal arrest." Id.
at __, 634 S.E.2d at 926-27. Neither of these cases is identical to this one. Although
representations like those made by Officer DiCostanzo were made to
the juvenile in Hodge
, that interview took place in the juvenile's
home and in the presence of his mother. On the other hand, W.R.
in contrast to this case, involved no assurances, and the juvenile
was searched by a police officer prior to his making incriminating
statements. Without findings of fact by the trial court, we cannot
determine whether the trial court could properly conclude that this
case is more similar to Hodge
than to W.R.
Accordingly, we remand
to allow the trial court to make the findings of fact necessary to
support its determination that Jake was not in custody at the time
he was questioned.
In his second argument on appeal, Jake contends that the trial
court committed reversible error when it ordered him to pay
restitution "in the neighborhood of $500" with the precise amount
"to be determined exactly by the D.A.'s office." Relying on In re
, 143 N.C. App. 461, 546 S.E.2d 407 (2001), Jake asserts
that the court never made a determination that its restitution
order was "fair and reasonable, related to the needs of the child,
and calculated to promote the best interest of the juvenile . . .
at 464, 546 S.E.2d at 410.
(See footnote 2)
Given the severity of the offenses, the trial court had
discretion to designate Jake as either a Level I or Level II
N.C. Gen. Stat. § 7B-2508 (2005). Based on its
decision to assign Jake to Level I, the court was authorized to
"[r]equire restitution, full or partial, up to five hundred dollars
($500.00), payable within a 12-month period to any person who has
suffered loss or damage as a result of the offense committed by the
juvenile." N.C. Gen. Stat. § 7B-2506(4) (2005). For Level II
offenders, the trial courts may impose restitution requirements in
excess of $500.00. See
N.C. Gen. Stat. §§ 7B-2506(22), -2508(d).
In the agreement leading up to Jake's admission of the
allegations in the petition, the parties left to the discretion of
the trial court whether Jake should receive a Level I disposition
or a Level II disposition. Prior to ruling, the court heard
argument regarding the appropriate level and restitution. After a
discussion of the fact that the exact amount of restitution was
still to be determined, the court inquired whether Jake's counsel
was taking the position that the court could not yet assign a
level. After the juvenile's counsel clarified that she agreed a
level could be assigned, the court stated to her: "You just want an
accurate amount of restitution." The juvenile's counsel replied:
"Well, and I thought that that might be determinative of the Court
in what level [sic] and I would argue that this is a Level I
because the restitution is slightly under $500." The State arguedin response that Level II was appropriate based on the nature of
the offense. The trial court ultimately imposed a Level I
disposition and provided that Jake was "to pay his share of the
restitution," which was estimated "to be in the neighborhood of
We hold that the juvenile, through counsel, acknowledged that
a payment of restitution was appropriate and specifically used the
amount of restitution to argue successfully in favor of a lesser
offender level. Moreover, there is nothing in the record to
suggest that the amount of restitution was arbitrary or that Jake
ever opposed the restitution award at trial on any basis. See,
, N.C. Gen. Stat. § 7B-2506(4) ("the court shall not require
the juvenile to make restitution if the juvenile satisfies the
court that the juvenile does not have, and could not reasonably
acquire, the means to make restitution"). Given defense counsel's
agreement with the order of restitution, we conclude that the order
is supported by the record and comports with Schrimpsher.
Affirmed in part and remanded in part.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).