IN THE SUPREME COURT OF NORTH CAROLINA No. 271 P A1 5 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. ___, 7 75 S.E.2d 3 26 (20 1 5 ), 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 201 4 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

- appell ee . EDMUNDS, Justice. Defe ndant, a juvenile, asked to telephone h is mother while undergoing custodial questioning by police investigators

. The call was all owed, after which the interrogation continued . The trial court denied defendant’s motion to suppress the statements he m ade following the call. We conclude that defendant’s request to call his mother was not a clear invocation of his righ t to consult a parent or guardianS TATE V
. S ALDIERNA Opinion of the Court

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- before proceeding with the questioning . Accordingly, w e reverse the decision of the Court of Ap peals that reversed the trial court ’s order denying the motion to suppress

. After s everal homes around Charlotte were broken i nto on 17 and 18 December 2012, C harlotte

- Mecklenburg Police arrested defendant on 9 January 2013

. At the time, defendant wa s sixteen and one

- half years old

. The arresting officers took defendant to a local police station where Detective Kelly (Kelly) interrogated him

. Before beginning he r interrogation , Kelly provided defendant with both English and Spanish versions of the Juvenile Waiv er of Rights Form routinely used by the Charlotte

- Mecklenburg Police Department to explain the protections afforded j uveniles un der N.C.G.S. § 7B

- 2101

. These forms advis ed defendant that he had the right to remain silent; tha t anything he sai d could be used against him; that he had the right to have a parent, guardian, or custodian p resent 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 def endant, 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 answerS TATE V
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- question s now, I am signing my name below. The words “I DO wish to answer questions now” on t he form are circled. Only after defendant signed the form did Detective Kelly begi n the interrogation. Kelly had gone no further than noting the time and date for the audio recording when defendant asked, “Um, c an I call my mom?” D etective Kelly offered her cellular tele phone to defendant and allowed him to step o ut of the booking room to make the call

. Detective Kelly could hear defen dant b ut was not sure if he placed one call or
two. D efendant did not reach his mother but did speak to someone else

. However, b ecause defen dant 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. D efendant did not object and made no further request to contact anyone

. D urin g the ensuing interview, defendant confess ed that he had been involved in the break

- ins

. D efendant 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, d efendant moved to suppress his confession, a rguing that it was illegally obtained in violation both of hi s 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, t he trial court denie d the motion in an ord er entered on 20 February 2014, finding as fact s that defendant was advised of his juvenile rights and, after receiving forms setting outS TATE V
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- these rights both in Eng lish and Spanish and having th e rights read to him in English by Kelly, in dicated that he underst ood them

. In addition , the trial court found that defendant informed Kelly that he wished to waive his juvenile rights an d signed the form memorializing that wish

. Al though 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 indic ate that he revoked his waiver.
18. That Defendant only a sked to speak to h is mother.
19. That Defendant did not make his interview conditional on having his mother present or conditi onal on speaking to his mother.
20. That Defendant did not ask to have his mother present at the interview site.
21. That, upo n 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 presen t during quest ioning.
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.S TATE V
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- 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 defenda nt’s state or federal rights. T he 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 understandingl y 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 ,

w hile 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 cour t’s order denying defendant’s motion to suppress, vacated the judgments entered upon defendant’s guilty pleas, and remanded the case to the tri al court for further proceedings. State v. Saldierna , ___ N.C. App. ___, ___, 775 S.E.2d 326, 334 (2015)

. The C ourt of Appeals recognized that the trial court correct ly found that defendant’s statement asking to telephone his mother was ambiguous at best

. Id. at ___, 775 S.E.2d at 33 1

. 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, theS TATE V
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- Court of Appeals held that when a juvenile between th e ages of fourteen and eighteen 1 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. T he Court of Appeals based this distinction on the fact that Miranda rights are rooted in the Uni ted States Constitution, while the right to have a parent present during custodial interrogations is an additional statutory protection for juveniles who, by v irtue 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 support s 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, 16 7

- 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) )

. F indings of fact are binding on appeal if supported by competent evidence , State v. Cooke , 306 N.C. 132, 134 , 291 S.E.2d 618, 6 19 (1982) (citation s omitted) , while conclusions of law are reviewed de novo , State v. Ortiz

– Z ape , 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 a ttorney. ” 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

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- 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 evaluati ng 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 c onstitution s of North Carolina and the United States , thus making his confession admi ssible. We begin with the forme r inquiry

. The State argues that defendant’s request to ca ll 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 d efendant simply asked to call his mother, which the detective

re adily permitted . He never requested his mother’s presence or indicated that he wished to suspend the interv iew 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 right s 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 inter view 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 stat utoryS TATE V
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- interpretation, defendant makes a n 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 determin ing whether he or s he was in police custody for purposes of Miranda , and hold that reviewing courts must take into account the juvenil e’s age and maturity level when determining the admissibility of juvenile confessions. As to d efendant’s statutory argumen t, N.C.G.S. § 7B

- 2101 (a) establishes that juveniles must be advised of certain rights prior to a custodial interrogation. T he statute codifies the juvenile’s Miranda rights and adds the additional protectio n 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, willi ngly, 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 therefor e 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 8 23 (2001) . In Smith , we n oted that the Supreme Court of the United Sta tes held in Edwards v. Arizona , 451 U.S. 477 , 101S TATE V
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- 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 enforcem ent. 317 N.C. at 106, 343 S.E.2d at 521. T his Cou rt in Smith applied that same principle in the context of juvenile law to h o ld 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 j uvenile re initiated 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. Neverthel ess , the Supreme Court o f the United States also has held that, when an individual under interrogation mentions an attorney with such vagueness that law enforcement investigators are left u nsure whether the comment is an invocation of the right to counsel , police have no duty to ask clarifying questions an d 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 toS TATE V
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- be an invocation of his or her right to have an at torney present. Davis , i d. 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. Bogge ss , 358 N.C. 676, 600 S.E.2d 453 (2004), we h eld that the defen dant’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 d efendant’s right to an attorney. Id. at 687, 600 S.E.2d at 460; see also State v. H yatt , 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
t o his father that “I want yo u 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 def endant’s statement that he “was not going to snitch” when questioned about his accomplice’s name was not an unambiguous invocatio n of his right to remain silent

. Id. at 473, 701 S.E.2d at 635. We have also applied Davis when the suspect u nder 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 robb ery, stol e a vehicle, and murdered two police officers. Id . at 380, 386

- 87, 533 S.E.2d at 183 , 187. AfterS TATE V
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- 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 Investigatio n. 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 request ed 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 anal ysis and concluded that the defendant’s statement was not an unambiguous request to remain sil ent. Id. at 45 0

- 5 1, 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. I n 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 requiredS TATE V
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- to seek c larification of ambiguous statements made by juvenile defendants under interrogation

. See i d. at 451, 533 S.E.2d at 225. Because a juvenile’s statutory right to have a parent or guardian present during questioning is entitle d to the same protection as the constitutiona l right to counsel, we must apply Davis in determining whether defendant’s statement

— “Um,

c an I call my mom?”

— was a clear and unambiguous invocation of hi s right to have his parent or guardian present during questioning. We conclude that it was not. Although defendant ask ed to call hi s 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
reque st was made, Kelly immediately loaned defendant her person al cellular tele phone so that he could make the call

. Defendant’s purpose for m aking 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. A s the trial court point ed out, defendant’s statement was at best an ambiguous invocati on of his right to have his mother present. As in Davis , w ithout an unambiguou s, unequivocal invocation of defendant’s right under N.C.G.S. § 7B

- 2101 (a) (3), law enforcement officers had no duty to askS TATE V
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- 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 det ermined t hat 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 i nstead 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 BE ASLEY dissenting.

I dis agree with the majority and would hold t hat 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

- 2101S TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- were not violated. Because I would affirm the Court of Appeals’ holding t hat 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.
S ubs ection 7B

- 2101(a) of the Nort h Carolina General Statutes provides that juveniles must be advised of certain enumerated rights before being subjected to
custo dial interrogation. As explained by the majority, “T he statute codifies the juvenile’s Miranda rights and adds the additional p rotection 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 codif ication 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)

2 Subsection 7B

- 21 01(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).S TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- (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 ri ght to have a parent, cust odian or guardian present during questioning is not an error of constitutional magnitude because this privilege is statutory in origin and does no t emanate from the Constitution ”) ). The
statute also establishes that a juvenile’s statement cannot be admitt ed 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 officer s have no obligation to clarify a defendant’s ambiguous statements. S ee Davis v. United States , 512 U.S. 452, 459, 461

- 62, 114 S. Ct. 2350, 2355

- 56 (1994) (“[T]he suspect must unambiguou sly request counsel, ” and law enforcement officers are not required
t o 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 unambig uous 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),S TATE V
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- 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 th e 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 a ttorney. ’ ” Davis , 512 U.S. at 459 , 114 S. Ct. a t 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. a t ___ 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. (Emphase s added.)S TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- 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 righ ts. 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 c all 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 th at defendant’s statement was ambiguous. See State v. Branham , 153 N.C. App. 91, 9 8

- 9 9, 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 wante d his mother present before questioning); see also State v. Smith , 317 N.C. 100, 10 6 , 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 r equest to cal l 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 requ isite category ” ). For the reasons stated more thoroughly below , however, juvenile defendants ar e provided greater prote ctions than their adult counter parts, especially in regards to a juvenile’s statutory right and protection to have a parent present.S TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- 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 un til 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 t o 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. Bra nham , 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. T he 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 Com mittee 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

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- 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

- 2 101(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 f orth 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 co nstitutional Miranda rights. As such, t he 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 l egislature’s intent that lawS TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- 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 i nterrogation[ ] is entitled to simil ar 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 , an d 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 F ifth and S ixth A mendments 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 codificatio n of the rights afforded to juveniles in section 7B

- 2101. Section 7A

- 595 was repealed in 1999 and re codified 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 sect ions are substantively the same.S TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- unambiguous invocation of the righ t to counsel and cannot resume questioning un til 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 establis hed that juveniles differ from adult s 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.”); Galle gos 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

-S TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- 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 prese nce 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 chro nological 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 avo id 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 awardedS TATE V
. S ALDIERNA BEASLEY, J., dissenting

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- 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, 77 1 (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 Cour t’s decision in In re Stallings , “J uveniles 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 reas on 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 C ode demonstrates “legislative intent to provide broader prote ctions to juveniles.” See id. at 57 7 , 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. a t 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 Interrogat ion 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%S TATE V
. S ALDIERNA BEASLEY, J., dissenting

- 24

- of juveniles understand the standard Miranda warnings . . . . [and] many d[o] not understand that [their r ight 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 the se 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 t han 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 ar e nervous and apprehensive when stopped by a uniformed officer even in relatively trivial situations such asS TATE V
. S ALDIERNA BEASLEY, J., dissenting

- 25

- routine traffic stops. Imagine then the apprehension, fear, and confusion of a teenager who finds himself under the power and authority of a law e nforcement 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 wit h her . Instead, defendant simply asked to call her.” This standard expects far too much of the typical juveni le 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 simpl e question to clarify defendant’s inten t 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 c ustodial 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 t he legislature intended to favorS TATE V
. S ALDIERNA BEASLEY, J., dissenting

- 26

- juvenile protection s 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.