No. 190A09
FIFTEEN-B DISTRICT
SUPREME COURT OF NORTH CAROLINA
******************************************************
IN THE MATTER OF
J.D.B.,
Juvenile
)
)
)
)
From Orange
05 J 115
**************************************************
BRIEF OF AMICI CURIAE
UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW JUVENILE
JUSTICE CLINIC, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
CENTER FOR CIVIL RIGHTS, OFFICE OF THE JUVENILE DEFENDER,
AND ADVOCATES FOR CHILDREN’S SERVICES
IN SUPPORT OF JUVENILE-APPELLANT
**************************************************
i
INDEX
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..2
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT
I.
BECAUSE ANY REASONABLE PERSON IN THE JUVENILE’S
POSITION WOULD HAVE BELIEVED THAT HIS FREEDOM
OF MOVEMENT HAD BEEN RESTRICTED IN A SIGNIFICANT
WAY AT THE TIME OF HIS INTERROGATION BY POLICE,
THE COURT OF APPEALS ERRED IN FINDING THAT HE WAS
NOT IN CUSTODY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2) . . . . . . . . . 17
CERTIFICATE OF FILING AND SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ii
TABLE OF AUTHORITIES
Cases
In re Eller, 331 N.C. 714, 417 S.E. 2d 479 (1992)............. 13
In re I.R.T., 184 N.C. App. 579, 647 S.E.2d 129 (2007)........ 10
In re J.D.B., 674 S.E.2d 795, 799 (N.C. Ct. App. 2009)4, 5, 6, 7,
8, 9, 13
In re Scrimpsher, 143 N.C. App. 461, 546 S.E. 2d 407 (2001).. 10,
14
In re T.E.F., 359 N.C. 570, 614 S.E.2d 296 (2005)............. 10
In re Vinson, 298 N.C. 640, 260 S.E. 2d 591, (1979)........... 11
State v. Barber, 335 N.C. 120, 436 S.E.2d 106 (1993), cert.
denied, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994). ............. 3
State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001)...... 6, 7
State v. Earwood, 155 N.C. App. 698, 574 S.E. 2d 707, (2003)... 3
State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983)........... 10
State v. Greene, 332 N.C. 565, 422 S.E. 2d 730 (1992).......... 6
State v. Grimmett, 54 N.C. App. 494, 284 S.E. 2d 144, (1981).. 12
State v. Hall, 131 N.C. App. 427, 508 S.E.2d 8.............. 6, 9
State v. Medlin, 333 N.C. 280, 426 S.E.2d 402 (1993)........... 6
State v. Norris, 77 N.C. App. 525, 335 S.E. 2d 764, (1985).... 10
State v. Sanders, 122 N.C. App. 691, 471 S.E. 2d 641 (1996).... 6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966) ....................................................... 9
Missouri v. Seibert, 542 U.S. 600, 159 L.Ed.2d 643 (2004)..... 14
Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403 (1984)......... 13
Yarborough v. Alvarado, 541 U.S. 652, 158 L. Ed. 2d 938, (2004).
.......................................................... 7, 8
In re I.J., 906 A.2d 249, 263 (D.C., 2006).................... 15
In re Killitz, 59 Or.App. 720, 651 P.2d 1382 (1982)........... 15
State v. Doe, 130 Idaho 811, 948 P.2d 166 (Idaho Ct. App. 1997)
........................................................ 14, 15
State v. D.R., 84 Wash. App. 832, 930 P.2d 350, review denied,
132 Wash.2d 1015, 943 P.2d 662 (1997) ....................... 15
Statutes
N.C. Gen.
N.C. Gen.
N.C. Gen.
N.C. Gen.
Stat.
Stat.
Stat.
Stat.
§
§
§
§
14-288.4(a)(6).............................. 12
7B-2000 (2005).............................. 10
7B-2101 (2005)......................... 2, 5, 9
7B-3000 (b) (2005)........................... 9
Other Authority
Marty Beyer, Immaturity, Culpability and Competency in Juveniles:
A Study of 17 Cases, 15 Crim. Just. 26, 28-29 (2000). ....... 11
Tamar Birckhead, The Age of the Child: Interrogating Juveniles
After Roper v. Simmons, 65 Wash. & Lee L. Rev. 385, 416-417
(2008) ...................................................... 11
Thomas Grisso, et. al., Juveniles’ Competence to Stand Trial: A
iii
Comparison of Adolescents’ and Adults’ Capacities as Trial
Defendants, 27 Law & Hum. Behav. 333, 356-57 (2002). ........ 11
Paul Holland, Schooling Miranda: Policing Interrogation in the
Twenty-First Century Schoolhouse, 52 Loy. L. Rev. 39, 85
(2006): ...................................................... 8
No. 190A09
FIFTEEN-B DISTRICT
SUPREME COURT OF NORTH CAROLINA
******************************************************
IN THE MATTER OF
J.D.B.,
Juvenile
)
)
)
)
)
)
From Orange
05 JB 115
**************************************************
BRIEF OF AMICI CURIAE
UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
CENTER FOR CIVIL RIGHTS, UNIVERSITY OF NORTH CAROLINA
SCHOOL OF LAW JUVENILE JUSTICE CLINIC, OFFICE OF THE JUVENILE
DEFENDER, AND ADVOCATES FOR CHILDREN’S SERVICES, LEGAL AID
OF NORTH CAROLINA
IN SUPPORT OF JUVENILE-APPELLANT
**************************************************
QUESTION PRESENTED
WHETHER THE COURT OF APPEALS ERRED IN HOLDING
THAT THE JUVENILE WAS NOT IN CUSTODY WHEN HE MADE
INCRIMINATING STATEMENTS PURSUANT TO A POLICE
INTERROGATION?
INTEREST OF AMICI CURIAE
Amici have an interest in ensuring that the constitutional and statutory rights
of children are fully protected and that the Court clarify the appropriate standard
2
for determining when a juvenile is in custody and therefore entitled to Miranda
warnings as well as the protections guaranteed by N.C. Gen. Stat. § 7B-2101
(2005).
STATEMENT OF THE CASE
Amici adopt and incorporate by reference the statement of the case set forth
by the juvenile-appellant in his brief.
STATEMENT OF THE FACTS
Amici adopt and incorporate by reference the statement of facts set forth by
the juvenile-appellant in his brief.
3
ARGUMENT
BECAUSE ANY REASONABLE PERSON IN THE JUVENILE’S
POSITION WOULD HAVE BELIEVED THAT HIS FREEDOM OF
MOVEMENT HAD BEEN RESTRICTED IN A SIGNIFICANT WAY
AT THE TIME OF HIS INTERROGATION BY POLICE, THE
COURT OF APPEALS ERRED IN HOLDING THAT HE WAS NOT
IN CUSTODY.
Assignments of Error Nos. 1-4 (Rp. 47)
A.
Standard of Review
When considering the admissibility of a confession, the trial court’s findings
of fact are conclusive on appeal if supported by competent evidence. See State v.
Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S.
1239, 129 L. Ed. 2d 865 (1994). The assessment of whether a defendant is in
custody, based on those findings of fact, is a question of law reviewable de novo by
this Court. See State v. Earwood, 155 N.C. App. 698, 702, 574 S.E. 2d 707, 711
(2003).
B.
Introduction
J.D.B., a thirteen-year-old Special Education student in the seventh grade at
Smith Middle School in Chapel Hill, was sitting in his social studies class in the
afternoon of 29 September 2005. R. Add. p. 3, T pp. 7, lines 2-12, 40, line 11.
Officer Gurley, a uniformed police officer assigned to the Smith Middle School,
4
came and removed J.D.B. from the class. R. Add. p. 3, T. p. 40, line 13-14. In re
J.D.B., 674 S.E.2d 795, 799 (N.C. Ct. App. 2009). Officer Gurley took J.D.B. to a
conference room, where three additional adults – two school officials and Officer
DiCostanzo from the Chapel Hill Police Department – were waiting. R. Add. p. 3,
T. p. 8, line 9-10. Officer DiCostanzo identified himself as a police officer. T. 25,
line 15. While J.D.B. presumably knew the school officials, there was no evidence
that he had ever before encountered Officer DiCostanzo or any other members of
the police department.
In fact, Officer DiCostanzo had come to J.D.B.’s school to interrogate him
about an off-campus breaking and entering. R. Add. p. 3, T. p. 6, lines 1-8.
Because he was attending school and had no advance notice from the police that he
would be interrogated, J.D.B. was without a parent or guardian. No one informed
him that he could have a trusted adult with him. R. Add. p. 3.
For approximately thirty to forty-five minutes, Officer DiCostanzo
interrogated J.D.B. in the closed conference room. R. Add. pp. 3-4, T. p. 25, lines
6-7. J.D.B. denied any involvement, but Officer DiCostanzo and one of the school
officials continued to question him.
R. Add. pp. 3-4.
The school official
encouraged him to “do the right thing” and tell the truth. R. Add. p. 4.
Officer
DiCostanzo confronted J.D.B. with a camera stolen in the incident. R. Add. p. 4,
T. p. 14, lines 18-21. J.D.B. then asked the officer whether he would “still be in
5
trouble” if he returned the stolen items. R. Add. p. 4. The officer replied that “it
would be helpful” but that the matter was “still going to court” and that the officer
might obtain a secure custody order for J.D.B., whereby J.D.B. would be detained
until his court date. R. Add. p. 4. , T. p. 12, lines 1-2.
After this escalating sequence of events, J.D.B. confessed his involvement in
the incidents of breaking and entering. R. Add. p. 4. Only after J.D.B. confessed
did Officer DiCostanzo tell him that he was not under arrest and that he did not
have to speak with him. R. Add. p. 4. Neither the officers nor the school officials
contacted, or attempt to contact, J.D.B.’s parent or guardian to inform him of the
interrogation. R. Add. p. 3, T. p. 23, line 18; p. 30, lines 2-12. At no time did the
officer give J.D.B. Miranda warnings. R. Add. p. 3. At no time did the officer
inform J.D.B. of the protections under N.C.G.S. § 7B-2101. In re J.D.B.,674
S.E.2d at 798.
Because the facts and circumstances surrounding J.D.B.’s interrogation would
have led a reasonable person in his position to believe that his freedom of
movement had been restricted in a significant way, Amici respectfully ask this
Court to reverse the Court of Appeals’ conclusion that J.D.B. was not in custody at
the time he made his incriminating statements. In re J.D.B., 674 S.E. 2d at 800.
Specifically, Amici urge this Court to find that the age of a suspect is a critical
factor in assessing whether he or she is in custody; such a finding is consistent with
6
North Carolina’s long-standing tradition of recognizing and protecting juvenile
status.
C.
J.D.B.’s age is a critical factor in determining
whether he was in custody.
To determine whether J.D.B. was in custody, the Court must consider the
circumstances surrounding his interrogation and assess whether there was “a
formal arrest or a restraint on freedom of movement of the degree associated with a
formal arrest.” State v. Buchanan, 353 N.C. 332, 338, 543 S.E.2d 823, 826 (2001).
This consideration involves “‘an objective test as to whether a reasonable person in
the position of the defendant would believe himself to be in custody or that he had
been deprived of his freedom of action in some significant way.’”
State v.
Sanders, 122 N.C. App. 691, 693, 471 S.E. 2d 641, 642 (1996) (quoting State v.
Greene, 332 N.C. 565, 577, 422 S.E. 2d 730, 737 (1992) (emphasis supplied). The
test is “’to be applied on a case-by-case basis considering all the facts and
circumstances.’” State v. Hall, 131 N.C. App. 427, 432, 508 S.E.2d 8,12 (quoting
State v. Medlin, 333 N.C. 280, 291, 426 S.E.2d 402, 407 (1993)) (emphasis
supplied).
It is a fact that J.D.B. was only thirteen years old at the time of his
interrogation.1 Officer DiCostanzo reasonably could have known – and, in fact,
1
The trial court made a finding of fact that J.D.B. was enrolled in special education
classes. R. Add. p. 3. However, because there is no record evidence regarding the
7
did know – of J.D.B.’s young age at the time he initiated his questioning. T. p. 23,
lines 13-15. The Court of Appeals majority rejected J.D.B.’s age as a factor that
could be considered in determining whether he was in custody, reasoning that
“consideration of a suspect’s individual characteristics - including age - could be
viewed as creating a subjective inquiry.” In re J.D.B., 674 S.E. 2d 795, 799 (2009)
(citing Yarborough v. Alvarado, 541 U.S. 652, 668, 158 L. Ed. 2d 938, 945 (2004).
The majority further suggested that age may only be considered in assessing
whether a juvenile has made a knowing and intelligent waiver of Miranda rights.
In re J.D.B., 674 S.E. 2d at 799
Contrary to the majority’s reasoning, the trial court should have considered
J.D.B.’s young age as one of several factors in assessing whether he was in
custody. Ignoring the fact that J.D.B. was only thirteen would:
lead to the absurd result that, when required to determine
whether a ‘reasonable person in the defendant's situation’ would
consider himself in custody, courts would apply exactly the same
analysis, regardless of whether the individual was eight or thirtyeight years old.
In re J.D.B., 674 S.E. 2d at 802, quoting Buchanan, 353 N.C. at 339-40, 543 S.E.
2d at 828 (Beasley, J., dissenting).
The majority improperly relied on Alvarado.
That case specifically
nature of J.D.B.’s disability, or whether Officer DiCostanzo knew or reasonably
could have known of his disability, Amici do not address his special education
status and its potential relationship to the custody analysis.
8
considered the habeas petition of a seventeen-year-old who had argued that age
should affect the Miranda custody inquiry. Because of the deference due a state
court on habeas review, the Supreme Court did not reach a decision on the merits.
It determined only that the state court’s refusal to consider Alvarado’s age was
reasonable. 541 U.S. at 660-69, 158 L. Ed. 2d at 945.
Although Alvarado does not control here, the Court of Appeals expressed a
concern articulated in Alvarado: that requiring the police to consider a suspect’s
age in assessing whether Miranda warnings are necessary would unfairly force
them to engage in a subjective inquiry and deprive the police of the “clear
guidance” that an objective test assures. Id. at 668.
J.D.B. was only thirteen
when questioned by police. The interrogation in this case occurred at a middle
school, where the police can assume that the students are all minors, well under
age eighteen. Consideration of the age of a student-suspect interrogated at a
middle school -- where a suspect’s minority status is certain -- does not jeopardize
the clarity that the Court has sought to provide law enforcement.
See Paul
Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century
Schoolhouse, 52 Loy. L. Rev. 39, 85 (2006):
Outside officers conducting interviews at schools are likely
doing so only when they are looking for a specific student and
thus are likely to already know the student's age. Even if they do
not, these officers rely on school staff to assist them in
establishing contact with the student. These staff members, of
course, have access to the student's records, which will include
9
the age. Seen in this context, courts considering the age of the
suspect are not imposing an extra burden of intuition or
information on officers but are instead seeing the interrogation in
its full context, as it is likely seen by those involved.
Consideration of J.D.B.’s age does not require a reviewing court to attempt to
discern whether J.D.B. himself believed he was in custody, as the Court of Appeals
majority suggested. In re J.D.B., 674 S.E. 2d at 800. Rather, J.D.B.’s age is simply
to be treated as one of the many objective factors attendant to the interrogation that
contribute to the perceptions of a reasonable person in J.D.B.’s position. The
reasonable person standard dictates that the court consider “all the facts and
circumstances.” State v. Hall, 131 N.C. App. at 432, 508 S.E.2d at 12 (internal
citation omitted).
The North Carolina General Assembly and courts have consistently
recognized the crucial role of age in assigning rights and responsibilities and have
created special protections for children over and above those afforded adults. For
example, the General Assembly has mandated that, in addition to the warnings
required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), a child who is in custody must also be advised that he has the right to have
a parent, guardian, or custodian present during questioning. N.C. Gen.Stat. § 7B2101(a) (2005).
Additionally, the records of juvenile cases are closed to the
public except by court order. N.C. Gen. Stat. § 7B-3000 (b) (2005). Furthermore,
the North Carolina Juvenile Code presumes that all juveniles are indigent for
10
purposes of appointing counsel in delinquency proceedings, N.C. Gen. Stat. § 7B2000 (2005).
Moreover, our courts have recognized the importance of considering a
defendant’s age in a variety of contexts. This Court has held that a trial court could
not adjudicate a juvenile as delinquent where it failed to follow the statutorily
mandated procedures in conducting the juvenile’s admission. The Court reasoned
that our State has a “greater duty to protect the rights of a respondent in a juvenile
proceeding than in a criminal prosecution.” In re T.E.F., 359 N.C. 570, 575, 614
S.E.2d 296, 299 (2005) (quoting State v. Fincher, 309 N.C. 1, 24, 305 S.E.2d 685,
699 (1983) (Martin, J., concurring). The Court of Appeals recently held that the
age of a child is relevant in determining whether a seizure has occurred within the
meaning of the Fourth Amendment. In re I.R.T., 184 N.C. App. 579, 584, 647
S.E.2d 129, 134 (2007). Likewise, in In re Scrimpsher, the Court of Appeals held
that the trial court’s order that a juvenile submit to warrantless searches was
“inconsistent with our desire to protect youthful offenders.” 143 N.C. App. 461,
467, 546 S.E. 2d 407, 412 (2001). See also State v. Norris, 77 N.C. App. 525, 528,
335 S.E. 2d 764, 766 (1985) (noting “long-held belief that the State should act as
parens patriae for youthful offenders”).
The Court in each of these cases recognized the salience of age – not because
of the perceptions and experiences of the particular youths in question, but because
11
of the State’s recognition of the ways in which developmental differences manifest
themselves in police interactions, and because of the State’s “parens patriae
interest in a delinquent child’s welfare.” In re Vinson, 298 N.C. 640, 652, 260 S.E.
2d 591, 599 (1979).
Recent research in the areas of neuroscience and developmental psychology
supports North Carolina’s recognition of the legal salience of age. Dr. Thomas
Grisso has found that youth under the age of fifteen are substantially more likely to
be intimidated by authority than are older adolescents and young adults. Grisso, et.
al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and
Adults’ Capacities as Trial Defendants, 27 Law & Hum. Behav. 333, 356-57
(2002).
The tendency of juveniles to think only about the present moment,
combined with their intense self-consciousness, leads them to have difficulty
thinking past the time of interrogation to a point in which they would be free, and
prevents them from recognizing the possibility of terminating an interrogation.
See Marty Beyer, Immaturity, Culpability and Competency in Juveniles: A Study
of 17 Cases, 15 Crim. Just. 26, 28-29 (2000). See also Tamar Birckhead, The Age
of the Child: Interrogating Juveniles After Roper v. Simmons, 65 Wash. & Lee L.
Rev. 385, 416-417 (2008) (summarizing studies demonstrating that juveniles are
particularly susceptible when interrogated by police officers and other authority
figures).
12
D. The Setting in Which J.D.B. was Interrogated,
in Conjunction with his Young Age, Would
Have Led the Reasonable Person in his
Position to Believe that his Freedom of Action Had
Been Significantly Restricted.
Like any student removed from his class by a law enforcement officer, J.D.B.
had no choice but to follow the school officer’s directives. Adults encountered by
police officers on the street or in other public places may simply walk away
without any negative repercussions. See, e.g., State v. Grimmett, 54 N.C. App.
494, 498, 284 S.E. 2d 144, 148 (1981) (holding that while it may be “responsible
citizenship” for individuals to cooperate with police, a citizen may nevertheless
refuse and go on his way) (citation omitted). Middle-school students, by contrast,
face a number of adverse consequences if they disobey adults in positions of
authority in their schools. See, e.g., Smith Middle School Code of Conduct, page
19 attached as Exhibit 1 (“Students are expected to . . . follow directions of all
teachers/adults the first time they are given”). Ignoring this rule triggers a variety
of negative consequences for the student. If the student were to refuse to comply
with an order from a teacher or school police officer, who in turn insisted on
enforcing the order, the ensuing conduct could lead the student to face criminal
charges for violating N. C. Gen. Stat. § 14-288.4(a)(6), which proscribes “public
disturbance intentionally caused by any person who . . . [d]isrupts, disturbs or
interferes with the teaching of students . . . or . . . disturbs the peace, order or
13
discipline at any . . . educational institution.” Id. See In re Eller, 331 N.C. 714,
717, 417 S.E. 2d 479, 481 (1992) (citation omitted).
Once he arrived in the conference room, having been accompanied at all times
by a uniformed police officer assigned to the school, J.D.B. then confronted three
more adults, including a Chapel Hill police officer not normally assigned to the
school.
The door was shut behind them.
In this moment, the closed-door
conference room with four adults, including the Chapel Hill police officer with
whom J.D.B. was presumably unfamiliar, would have created for the average
person in J.D.B’s position an impression that he was in custody.
The U.S. Supreme Court has noted that children, unlike adults, are always in
some form of custody. Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410
(1984). Yet the coercive elements of the conference room, populated by four adults
including two police officers, created a level of custody far beyond the custodial
elements that accompany all school attendance.
Interrogation under such
circumstances should trigger constitutional scrutiny.
While the Court of Appeals majority placed great reliance on the fact that
Officer DiCostanzo informed J.D.B. that he was free to leave the interview, this
notification crucially did not occur until after J.D.B. had already made
incriminating statements. In re J.D.B., 674 S.E. 2d at 797. At that point, as noted
in the dissent, J.D.B. had “let the cat out of the bag.” Id. at 804 (Beasley, J.,
14
dissenting). See Missouri v. Seibert, 542 U.S. 600, 604, 159 L.Ed.2d 643, 651
(2004) (“midstream recitation of warnings after interrogation and unwarned
confession” does “not effectively comply with Miranda's constitutional
requirement”).
Courts in other jurisdictions, analyzing similar situations, have held that
Miranda warnings must be given prior to questioning. For example, in State
v. Doe, 130 Idaho 811, 948 P.2d 166 (Idaho Ct. App. 1997), the Idaho Court of
Appeals held that a ten-year-old boy who was interrogated at school by a police
officer assigned to the school (a “school resource officer,” or “SRO”) was in
custody for purposes of Miranda. The court reasoned that:
In this case, Doe received a mandatory directive to leave
his fifth-grade class and report to the faculty room, where
he had been disciplined previously by both the SRO and
school officials. He was not informed by school officials
or by the SRO that he could leave, that he did not have to
answer the officers' questions or that he could terminate
the questioning at any time. It was only after Doe
confessed that he was told he could leave. No parent or
other adult concerned with Doe's best interest was
present during the questioning. Doe knew that the person
interviewing him was a police officer, and the officer's
badge was visible. 130 Idaho at 818, 948 P.2d at 173.
The court then found that it was:
unlikely that the environment of a principal's office or a
faculty room is considered by most children to be a
familiar or comfortable setting, for students normally
report to these locations for disciplinary reasons, as Doe
had in the past. It is also unlikely that any ten-year-old
15
would feel free to simply leave the administrative area of
the school after having been summoned there by school
authorities for a police interview. Doe, 130 Idaho at 81819, 948 P.2d at 173-74.
Similarly, in State v. D.R., 84 Wash. App. 832, 930 P.2d 350, review denied,
132 Wash.2d 1015, 943 P.2d 662 (1997), the Washington Court of Appeals found
that a fourteen-year-old boy, who was interviewed in an assistant principal's office
by a police officer in the presence of the assistant principal and a school social
worker, was in custody. The court's conclusion was based on “[the officer's]
failure to inform him he was free to leave, D.R.'s youth, the naturally coercive
nature of the school and principal's office environment for children of his age, and
the obviously accusatory nature of the interrogation.” 84 Wash. App. at 838, 930
P.2d at 353. See also In re I.J., 906 A.2d 249, 263 (D.C., 2006) referencing In re
Killitz, 59 Or. App. 720, 651 P.2d 1382 (1982) (“Killitz has been cited, and
followed, by numerous courts for the proposition that when a student is in school,
and is compelled by school authorities to leave his normal classroom setting to
speak with the police in a private location, the interview is custodial within the
meaning of Miranda.”)
The setting of J.D.B.’s interrogation, in tandem with his age, created a
situation in which any reasonable 13-year-old would have believed his freedom of
movement to be curtailed.
16
CONCLUSION
For the reasons submitted above, as well as any other this Court may find
compelling, amici respectfully ask this Court to reverse the Court of Appeals’
conclusion that J.D.B. was not in custody at the time he made incriminating
statements.
Respectfully submitted this the 8th day of June 2009.
Electronically Submitted
S. Hannah Demeritt
Attorney at Law
P.O. Box 3201
Durham, NC 27715
(919) 260-9938
shdlaw@earthlink.net
N.C. Bar No. 32652
N.C. R. App. p. 33 (b) Certification: I
certify that the attorneys listed below
have authorized me to list their names
on this document as if they had
personally signed.
Barbara Fedders
Attorney at Law
UNC School of Law
Juvenile Justice Clinic
Van Hecke-Wettach Hall
Campus Box 3380
Chapel Hill, N.C. 27599
(919) 962-6808
fedders@email.unc.edu
N.C. Bar No. 37392
17
Mark Dorosin
Attorney at Law
UNC School of Law
Center for Civil Rights
Campus Box 3382
Chapel Hill, N.C. 27599
(919) 843-7896
dorosin@email.unc.edu
N.C. Bar No. 20935
Attorneys for Amici
CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)
Undersigned counsel hereby certifies that this brief is in compliance with
N.C. R. App. P. 28 (j) (2) in that it is printed in 14 point Times New Roman font
and contains no more than 8750 words in the body of the briefs, footnotes and
citations included, as indicated by the word-processing program used to prepare
the brief.
This the 8th day of June, 2009.
Electronically Submitted
S. Hannah Demeritt
Attorney for Amici
18
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Brief Amici Curiae in support of the
Juvenile-Appellant was served upon the North Carolina Supreme Court by
electronically filing a copy thereof at www.ncappellatecourts.org on June 8, 2009.
I further hereby certify that a copy of the Brief Amici Curiae in support of
the Juvenile-Appellant Defendant-Appellant’s Brief was served upon the counsel
of record for the juvenile and for the State by depositing a copy thereof, postage
prepaid, in the U.S. mail, on June 8, 2009 as follows:
La Toya B. Powell
Asst. Attorney General
State of North Carolina
PO Box 629
Raleigh, NC 27602
Lisa Skinner Lefler
Attorney for Juvenile-Appellant
Post Office Box 12789
Wilmington, N.C. 28405
(910) 796-2026
llefler@ec.rr.com
N.C. Bar No. 18328
Electronically Submitted
S. Hannah Demeritt
Attorney at Law
P.O. Box 3201
Durham, NC 27715
(919) 260-9938
shdlaw@earthlink.net
N.C. Bar No. 32652