No. 05-1602 DISTRICT 18
NORTH CAROLINA COURT OF APPEALS
IN THE MATTER OF: )
W.R. ) From Guilford County
) 04 J 723
I. Did the trial court commit reversible error, and in the alternative,
plain error, in admitting juvenile’s statement obtained
through custodial interrogation without making a finding that the
juvenile knowingly, willingly, and understandingly waived his
II. Did the trial court erred in denying the juvenile’s motion to dismiss
at the close of State’s evidence, and at the close of all evidence,
inasmuch as the evidence was insufficient to support the
adjudication of juvenile as delinquent as a matter of law, thereby
denying juvenile a fair trial?
III. Did the trial court err in adjudicating the juvenile a delinquent when
it failed to use the correct standard of proof?
STATEMENT OF THE CASE
Juvenile was tried for the charge of possession of a weapon on school
property at the 7 January 2005 Criminal Session of District Court for Guilford
County, the Honorable Lillian B. Jordan, Judge Presiding, whereupon the court
adjudicated juvenile a delinquent. The adjudication order was entered 21
January 2005. A disposition hearing was held 17 February 2005, the Honorable
Wendy M. Enochs, Judge Presiding, and the disposition order was entered 4
March 2005, placing the juvenile on probation for 6 months. Juvenile gave
timely notice of appeal.
GROUNDS FOR APPELLATE REVIEW
Juvenile appeals his adjudication of delinquency pursuant to N.C. Gen.
Stat. § 7B-2602 (2003).
STATEMENT OF THE FACTS
Two witnesses testified on behalf of the State at the trial of this case: (1)
Jesse Pratt (“Pratt”), Principal of Allen Middle School, and (2) Judy Flake
(“Flake”), Assistant Principal of Allen Middle School. They testified that as a
result of a call from a parent on 19 August 2004, Pratt and Flake conducted a
search of the juvenile, W.R., that same day (Tpp. 4-5). Flake and Officer
Warren of the Greensboro Police Department (Rp. 3) searched the juvenile’s
locker and his possessions (Tp. 6). The search did not yield anything (Tp. 5, ll.
6-7). After the search, W.R. was taken to the office of the assistant principal,
Ms. Flake. Pratt, Flake and Officer Warren, a police officer with the
Greensboro Police Department (Rp. 3) questioned the juvenile in Flake’s office
(Tp. 9, ll. 21-24). The juvenile first denied having a weapon (Tp. 5). W.R. was
told that this was a serious matter and he needed to tell the truth (Tp. 14). After
being questioned for about 30 to 40 minutes, the juvenile said he had had a knife
at school the “day before” (Tp. 8, 14). The juvenile was questioned for
approximately two (2) hours (Tp. 8). After being questioned, W.R.’s parent was
called, and took W.R. home from school. No knife was ever found on defendant
or in his locker. Officer Warren, the officer who questioned the juvenile, filed
the juvenile petition in this case (Rpp. 2-3).
I. The trial court committed reversible error, and in the alternative, plain
error, in admitting juvenile’s statement obtained through custodial
interrogation without making a finding that the juvenile
knowingly, willingly, and understandingly waived his constitutional
Assignment of Error 2, Rp. 19
Standard of Review
Although juvenile did not object at trial, when a trial court acts contrary to
a statutory mandate and a defendant is thereby prejudiced, the defendant’s right
to appeal the trial court’s decision is preserved notwithstanding the defendant’s
failure to object at trial. In re Taylor, 97 N.C. App. 57, 61, 387 S.E.2d 230, 232
(1990), citing State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985).
Failure to comply with a statutory mandate is prejudicial error per se, State v.
Hucks, 323 N.C. 574, 374 S.E.2d 240 (1988) (court must act sua sponte and
exclude evidence rendered incompetent by statute in the absence of an objection
by the parties), and is reversible error. In re Alexander, 158 N.C. App. 522, 582,
S.E.2d 466 (2003).
Plain error is an error which was “so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury reaching a different
verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201,
213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L.Ed.2d 912
(1988). To prevail under a plain error analysis, a defendant must establish not
only that the trial court committed error, but that absent the error, the jury
probably would have reached a different result. See State v. Jordan, 333 N.C.
431, 440, 426 S.E.2d 692, 697 (1993). State v. Jones, 137 N.C. App. 221, 226,
527 S.E.2d 700, 704 (2000).
The Fifth Amendment of the United States Constitution guarantees that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed.
2d 694 (1966), the United States Supreme Court determined that the prohibition
against self-incrimination requires that prior to a custodial interrogation, the
alleged defendant must be advised “that he has a right to remain silent, that
anything he says can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning.” Id. at 479, 16 L.Ed.2d at 726.
The question of whether Miranda warnings were required turns on a two-part
analysis: whether the defendant (1) in custody, and (2) interrogated. State v.
Crudup, 157 N.C.App. 657, 580 S.E.2d 21 (2003).
Under the North Carolina Juvenile Code, a juvenile must be advised prior
to questioning that: (1) he has the right to remain silent; (2) any statement he
makes can be and may be used against him; (3) that he has a right to have a
parent, guardian, or custodian present during questioning; (4) that he has a right
to consult with an attorney and that one will be appointed for him if he is not
represented and wants representation. N.C.G.S. § 7B-2101(a)(1999). Before
the trial court can admit any evidence resulting from the custodial interrogation
of a juvenile, the court must find that the juvenile knowingly, willingly, and
understandingly waived his rights. N.C.G.S. § 7B-2101(d)(1999)(emphasis
added). Our Supreme Court has held that the rights protected by N.C.G.S. § 7B-
2101 apply to custodial interrogations. State v. Gaines, 345 N.C. 647, 661, 483
S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997) (statute
“pertains only to statements obtained from a juvenile defendant as the result of
The evidence at trial shows that W.R. was subjected to custodial
interrogation. It is uncontroverted that the juvenile was interrogated, as shown
by the testimony of Pratt and Flake. The juvenile was never read his Miranda or
Fifth Amendment rights. He was never advised as required by § 7B-2101 of the
Juvenile Code. He was not advised that he was entitled to have a parent present
during the questioning. Additionally, all the evidence indicates that the
interrogation was custodial.
To determine whether a juvenile is in “custody” the test is “whether a
reasonable person in defendant’s position, under the totality of the
circumstances, would have believed that he was under arrest or was restrained in
his movement to the degree associated with a formal arrest.” State v. Buchanan,
353 N.C. 332, 339-40, 543 S.E.2d 823, 828 (2001). “This is an objective test,
based upon a reasonable person standard, and is ‘”to be applied on a case-by-
case basis considering all the facts and circumstances.’” State v. Jones, 153 N.C.
App. 358, 365, 570 S.E.2d 128, 134 (2002). The standard objective test for
“custody” is whether “a reasonable person in the suspect's position would
believe himself to be in custody or that his freedom of action was deprived in
some significant way.” Oregon v. Mathiason, 429 U.S. 492, 494, 50 L.Ed. 2d
714, 718 (1977). The reasonable person standard must take the subject’s age
into consideration. State v. Smith, v. Smith, 317 N.C. 100, 343 S.E.2d 518
(1986)(sixteen-year-old held to be in custody, as he would not have believed
that he was free to go or that his freedom of action was not being deprived),
overruled on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823,
The juvenile in the present case was 14 years old at the time he was called
out of class and was placed in a school office for questioning for two (2) hours.
Juvenile was questioned by a police officer and two school officials. He did not
go to the office of his own free will. There is not a shred of evidence that he
could leave the school office if he had so chosen. He was told this was a serious
matter and pressured to admit to a crime. After two (2) hours, he was not
released back to class, but to the custody of his parent. It is obvious that his
freedom of action was deprived after he was searched and then questioned in the
assistant principal’s office. Under these circumstances, there is no question
that a fourteen year old would have believed he was in custody and could not
leave of his own free will, consistent with a formal arrest. As a result of the
interrogation, the officer conducting the questioning took out a juvenile petition.
It is obvious the questioning was not just for school disciplinary matters.
While this court has held that a juvenile was not in custody while
questioned by a school officials in a school office, In re Phillips, 128 N.C. App.
732, 497 S.E.2d 292 (1998), the court indicated that the holding would have
been different if law enforcement had been involved. The court noted that (1)
no law enforcement official was involved in the questioning in Phillips; (2) the
school official conducting the questioning in Phillips did not act as an agent of
law enforcement and had no arrest power; (3) the juvenile in Phillips was
questioned only for school disciplinary proceedings. Id. To the contrary, the
juvenile in the present case was questioned by a law enforcement official, who
had arrest powers, along with the two school officials. Further, the presence of
and questioning by the police officer, and subsequent juvenile petition, shows
the questioning was for criminal matters outside of school disciplinary action.
The facts in the present case are markedly distinguishable from Phillips.
The court did not make a finding that W.R. knowingly, willingly, and
understandingly waived his rights before admitting his in-custody statement.
The trial court admitted evidence of a custodial interrogation contrary to the
statutory mandate of N.C.G.S. § 7B-2101(d), and this is reversible error per se.
State v. Hucks, 323 N.C. 574, 374 S.E.2d 240 (1988) (court must act sua sponte
and exclude evidence rendered incompetent by statute in the absence of an
objection by the parties); In re Alexander, 158 N.C. App. 522, 582, S.E.2d 466
(2003). In the alternative, the plain error standard is met in this case. There is
no doubt that absent the error, the judge probably would have reached a different
result, as the juvenile’s statement, as told by Pratt and Flake, was the only
evidence upon which the court based the conviction (Tpp. 19, 22-23). This is a
miscarriage of justice.
Based on the foregoing, this court should hold that the admission should
have been suppressed under N.C.G.S. § 7B-2101, and therefore, the adjudication
must be reversed. In the alternative, the court should reverse and remand this
matter for a new hearing for the trial court to make a proper inquiry and make
required findings under N.C.G.S. § 7B-2101(d).
II. The trial court erred in denying the juvenile’s motion to dismiss at the
close of State’s evidence, and at the close of all evidence, inasmuch as the
evidence was insufficient to support the adjudication of juvenile as
delinquent as a matter of law, thereby denying juvenile a fair trial.
Assignment of Error 1, Rp. 19
Standard of Review
A juvenile is entitled to have evidence evaluated by same standard as
applies to criminal proceedings for adults. In the Matter of Davis, 126 N.C.
App. 64, 483 S.E.2d 440 (1997). Upon a defendant’s motion to dismiss, the
question before the court is whether there is substantial evidence of (1) each
essential element of the offense charges, and (2) of defendant’s being the
perpetrator of such offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114
(1980). If the evidence is sufficient only to raise a suspicion or conjecture as to
either the commission of the offense or the identity of the defendant as the
perpetrator, the defendant’s motion to dismiss must be allowed. Id.
The juvenile’s alleged admission during custodial interrogation was
inadmissible under Miranda and under the Juvenile Code, as shown by
Argument I above (juvenile hereby adopts Argument I into the present
argument). The alleged admission was the only evidence on which the court
relied to deny the motion to dismiss and adjudicate the juvenile delinquent (Tpp.
19, 22-23). Because this evidence was erroneously introduced, and there was no
other evidence that the juvenile committed the delinquent act, the trial court
erred in denying the motion to dismiss. See State v. Beckham, 105 N.C. App.
214, 412 S.E.2d 114 (1992)(convictions which relied on statement obtained as
result of custodial interrogation which occurred prior to defendant’s being
advised of his Miranda rights must be reversed). Accordingly, juvenile’s
adjudication should be overturned by this court.
III. The trial court erred in adjudicating the juvenile a delinquent when it
failed to use the correct standard of proof.
Assignment of Error 3, Rp. 19
Standard of Review
Use of the language “shall” is a mandate to trial judges, and that failure to
comply with the statutory mandate is reversible error. In re Walker, 83 N.C.
App. 46, 47, 348 S.E.2d 823, 824 (1986); In re Mitchell, 87 N.C. App. 164, 359
S.E.2d 809 (1987).
The allegations of a petition alleging the juvenile is delinquent shall be
proved beyond a reasonable doubt. N.C.G.S. §7B-2409 (1999). “If the judge
finds that the allegations in the petition have been proved as provided in G.S.
7B-2409 [beyond a reasonable doubt], he shall so state.” N.C.G.S. § 7B- 2411
(1999). This court has consistently held that a trial court’s failure to adjudicate a
juvenile a delinquent without affirmatively stating that the allegations of the
juvenile petition had been proved beyond a reasonable doubt is error per se. In
re Eades, 143 N.C.App. 712, 547 S.E.2d 146 (2001); In re Johnson 76 N.C.
App. 159, 331 S.E.2d 756 (1985).
In the adjudicatory order in the case at bar, the trial court never states that
the allegations in the petition have been proven beyond a reasonable doubt. It
only states that the findings of fact have met this standard; thus, the trial court
committed reversible error per se.
Without a valid adjudicatory order, the court is without jurisdiction to
enter a disposition. See In the Matter of Kenyon N., 110 N.C. App. 294, 298,
429 S.E.2d 447, 449 (1993). Accordingly, the adjudication and disposition must
be reversed, and this case remanded for a new hearing.
Based on the foregoing, juvenile respectfully contends that his
adjudication should be reversed, and in the alternative, he should be granted a
Respectfully submitted, this the _____ day of February, 2005.
Michelle FormyDuval Lynch
Attorney for Juvenile-Appellant
PO Box 528
Wrightsville Beach, NC 28480
CERTIFICATE OF FILING AND SERVICE
I hereby certify that I have this day filed the foregoing brief by U.S. Mail,
postage prepaid, properly addressed to Mr. John Connell, Clerk of Court, North
Carolina Court of Appeals, as provided in the Rules of Appellate Procedure.
I further certify that I have this day served a copy of the foregoing brief
upon the State, by U.S. Mail, postage prepaid, properly addressed, as follows:
Mr. Roy Cooper, Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27609
This the ____ day of February, 2005.
Michelle FormyDuval Lynch
Attorney for Juvenile-Appellant