State v. Gamez

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-436

Filed: 19 March 2019

Harnett County, Nos. 11 CRS 53886, 13 CRS 424, 16 CRS 651

STATE OF NORTH CAROLINA

v.

SEBASTIAN GAMEZ

Appeal by defendant from judgments entered 6 February 2017 by Judge C.

Winston Gilchrist in Harnett County Superior Court. Heard in the Court of Appeals

15 January 2019.

Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N.

Bolton and Assistant Attorney General Joseph L. Hyde, for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.

DAVIS, Judge.

In this case, we reexamine the circumstances under which Miranda warnings

are required when a member of the armed forces is questioned by his superior officer

about his involvement in the commission of a crime. Defendant Sebastian Gamez

entered an Alford plea to the charges of second-degree murder, aiding and abetting a

first-degree kidnapping, and conspiracy to commit kidnapping, but his plea was

conditioned on his right to appeal the trial court’s denial of his motion to suppress

certain oral and written inculpatory statements made by him to a superior officer.

Because we conclude that the trial court’s order denying his motion to suppress

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Opinion of the Court

lacked findings of fact on key issues and the court did not fully apply the correct legal

standard in ruling on Defendant’s motion, we vacate the order in part and remand

for further proceedings.

Factual and Procedural Background

On 25 March 2013, Defendant, then a private in the United States Army

stationed at Fort Bragg, was indicted by a grand jury on charges of murder,

concealing the death of a person, first-degree kidnapping, and conspiracy to commit

first-degree kidnapping. On 2 June 2016, Defendant filed a motion to suppress four

items of inculpatory evidence: (1) statements he made to detectives at the Harnett

County Sheriff’s Office on 16 August 2011; (2) statements made to detectives at the

Cumberland County Sheriff’s Office on 17 August 2011; (3) an oral statement made

to Sergeant Rebecca Schlegelmilch on 18 August 2011; and (4) written statements

contained in a letter sent by him from jail to Sergeant Schlegelmilch dated 2

September 2011.

A hearing was held on Defendant’s motion to suppress on 5 December 2016 in

Harnett County Superior Court before the Honorable C. Winston Gilchrist. On 10

March 2017, the trial court entered an order (the “Suppression Order”) denying

Defendant’s motion in its entirety. In the Suppression Order, the trial court made

the following pertinent findings of fact:

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1. On August 16, 2011 Rebecca Schlegelmilch was a first

sergeant in 3rd brigade of the United States Army stationed

at Fort Bragg, North Carolina. She was then, and at all

times material herein a non-commissioned officer.

2. On August 16, 2011 Christopher Blackett and

Sebastian Gamez were privates in her company. Blackett

was her driver and Gamez was in the distribution platoon

as a truck driver.

3. During this time, Lavern Sellers was a sergeant also

in Schlegelmilch’s company.

4. The primary duties of the first sergeant are to look

after the health and welfare of the soldiers under her.

These included training and professional development.

While at times these also include some investigations of

criminal conduct by soldiers, that is not a specific duty but

is based on a case by case basis.

5. At no time material herein was Schlegelmilch

conducting an investigation into the death of Vincent

Carlisle or the involvement of Blackett and Gamez. In fact,

the military as a whole was not investigating this as a

criminal matter.

6. On August 16, 2011 Sellers contacted Schlegelmilch

after Blackett told him that Blackett had shot somebody.

Upon learning that information Schlegelmilch had Sellers

call Blackett so they could meet. When Blackett showed

up at company headquarters Schlegelmilch asked him

what had happened.

7. At first Blackett did not want to tell her anything

because he did not want to involve Schlegelmilch.

However, after Schlegelmilch told him that she needed to

know what happened he told her that somebody broke into

his and Gamez’s house and that the two of them tried to

capture the individual. When they did that, the individual

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pulled a gun on Gamez and Blackett shot that individual.

He also said that he and Gamez then took the individual

into the woods. He said that he was not sure if the

individual was alive or dead.

8. Initially Schlegelmilch was not sure if this had even

happened, whether the individual was alive or dead, or

where this might have happened. Blackett agreed to take

her and Sellers on highway 210 in the direction he said he

and Gamez went in an attempt to locate where the body

was left.

9. After driving some time, Schlegelmilch began

Googling “police station” or something similar on her phone

to locate the nearest law enforcement center. At that time,

they were near the Harnett County Sheriff’s Office

(hereinafter HCSO or HC) so she directed Sellers to that

location. Once there she recommended to Blackett that he

tell the police what was going on, but if he didn’t, she would

have to. She was concerned that there might [be] a threat

against one of her soldiers or that the individual shot might

need help.

10. During the drive, she called Gamez to ask him what

happened in an attempt to confirm the information

Blackett was giving her. Gamez’s response was that he did

not know what she was asking. He said he had no

knowledge of what she was talking about. She did not ask

him any direct questions about what Blackett had told her.

11. Once at the Sheriff’s office, she asked if they could talk

to someone who could help and Blackett, Sellers and she

were placed in a room. Once an officer came in the room,

Blackett started telling the officer why they were there.

The officer left and some detectives arrived. Blackett went

to a different area of the sheriff’s office while Schlegelmilch

and Sellers remained in the hallway.

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12. While Blackett was with the detectives Schlegelmilch

called her commander (Captain Lett) to inform her of the

situation. Also, at some point during the interview

Schlegelmilch stepped outside the Sheriff’s office to smoke

and called Lett to ask her to get a hold of Gamez and have

him go [to] the Sheriff’s office so he could be interviewed.

A detective or officer overheard her and pulled her aside.

That officer told her that she couldn’t “tell these people to

come up here or make people come up here. If they want

to they can.” She then called back to the company and

talked to the NCO taking Gamez to the Harnett County

Sheriff’s Office and told him that they couldn’t make

Gamez go to the Sheriff’s office and he didn’t have to go

there if he didn’t want to. However, Gamez was already on

his way.

13. Upon receiving the call from Schlegelmilch that the

detectives wanted to talk to Gamez, Captain Lett informed

her battalion Commander, Lt. Col[.] Baumeister, and

command Sergeant Major Hall, of the situation. Captain

Lett was told to bring Gamez to the company headquarters.

She left headquarters and went to the firing range to get

Gamez. She told Gamez to get back to the headquarters

without explaining to him the reasons for his return.

Driving back to headquarters, Gamez did not ask any

questions and was not asked any by Captain Lett or anyone

else.

14. Lt. Bobby Reyes with the Cumberland County

Sheriff’s Office (hereinafter CCSO or CC) received

information from Nan Trogden [sic] of the CCSO that she

had received a call from Harnett County Sheriff’s Office

that they had a soldier there who was telling them about a

shooting homicide, possibly in Cumberland County. He

then contacted Lt. Webb of the HCSO to confirm the

information. Reyes and Sgt. Brown then went to the

Harnett County Sheriff’s Office. Reyes also dispatched Sgt.

Gagnon and Sgt. Trogdon to 102 Carmichael Street in

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Spring Lake, the location where the shooting was alleged

to have occurred.

15. Upon arriving at the HCSO Reyes and Brown were

briefed by Lt. Webb. They were advised that a person, later

identified as Vincent Carlisle, had broken into Blackett’s

and Gamez’s residence days earlier and that on Sunday

evening he broke in again. There was a scuffle in the living

room. Mr. Carlisle ran out the back door and was chased

by Blackett. Gamez ran out the front door to cut Carlisle

off. Blackett said that Carlisle then pulled a gun on Gamez

and Blackett shot Carlisle several times. After that the two

soldiers got trash bags, wrapped up Carlisle’s body, put it

in the back of Gamez’s Hummer and drove to Harnett

County where they disposed of the body. The information

also was that they had thrown the victim’s gun into the

Cape Fear River and that Blackett’s gun was disassembled

and stored inside Blackett’s vehicle on Ft. Bragg.

16. When Reyes and Brown arrived at the HCSO,

Blackett was not there but was with a HC deputy,

Schlegelmilch and Sellers travelling the roads looking for

the location where the body might have been left. Gamez

was also not at the HCSO but was on the way. Reyes

contacted other deputies with Cumberland County and had

them go to Fort Bragg in order to retrieve the weapon from

Blackett, which he agreed to give them.

17. When Gamez arrived at the HCSO Schlegelmilch told

him, “I can’t make you be here, so you don’t have to talk or

do anything.” His response to her was “okay” or “Yes, First

Sergeant.” Gamez then walked into the HCSO and went

to the same area where Blackett had been to be

interviewed. Gamez was directed into the interview room

by Lt. Webb of the HCSO who thanked Gamez for being

there. There he was interviewed by Reyes and Brown.

Neither Reyes nor Brown had anything to do with Gamez

appearing at the Sheriff’s Office. Prior to being

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interviewed, Gamez was not given any Miranda rights

[sic].

18. Before, during and after the interview, Gamez was not

handcuffed or restrained in anyway [sic]. He was not

threatened at all. He was not promised anything. Except

for the actual interview, detectives with Cumberland

County had no prior contact with Gamez and did not ask

him any questions. During the interview Gamez gave a

statement that essentially mirrored that given by Blackett.

19. At one point during the interview, Reyes told Gamez

that they were going to take him in a car to look for

Carlisle’s body. To this, Gamez responded that he was not

going to do that, that he did not have to do that, and that

he was told he was at the Sheriff’s Office only to give

information. At that point, Reyes nor Brown pushed the

issue further. Additionally, based on the information given

during the interview, detectives were not sure whether

Carlisle was hurt, alive or deceased. During the interview,

Gamez never asked for an attorney, nor did he state that

he did not want to answer any further questions. He was

cooperative throughout.

20. At the conclusion of the interview, Gamez was not

arrested or further detained. He was allowed to leave the

Sheriff’s Office. Nether Reyes nor Brown was aware of who

Gamez left with.

21. After interviewing Gamez, Reyes and Brown then

interviewed Blackett.

22. At the conclusion of the interviews of Blackett and

Gamez, Blackett told Schlegelmilch that he had the

weapon involved in the shooting and was willing to give it

to the Cumberland County detectives. Gamez was present

at this conversation. Sellers, Schlegelmilch, Blackett and

Gamez then left the HCSO in Seller[s’] vehicle and drove

back to Fort Bragg. At no point was Gamez under any

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Opinion of the Court

orders to cooperate with law enforcement or to give

statements or information to them. Upon arriving at Fort

Bragg, Blackett went to his car with Schlegelmilch, located

the weapon used in the shooting, assembled it, [and] gave

it to Schlegelmilch, who then gave it to an MP. Blackett

then agreed to go to his residence and allow law

enforcement to search his residence. Blackett,

Schlegelmilch and Sellers then went to 102 Carmichael

Drive, Spring Lake, the home of Blackett and Gamez.

23. Shortly after they arrived, Detectives Gagnon and

Trogdon of the Cumberland County Sheriff’s Office left the

residence to go to Fort Bragg to meet Gamez to obtain

consent to search the Hummer and residence. Upon

meeting with Gamez at Fort Bragg, he signed a consent to

search the residence and his vehicle.

24. Blackett, after giving law enforcement the weapon

used in the shooting, arrived at the residence and signed a

consent for the search of that home.

25. As a part of the search of Gamez’s Hummer, the

officers desired to spray the inside with Blue Star reagent

to detect the presence of blood. However, where the vehicle

was initially parked there was too much lighting. Gamez

drove his vehicle to another location on post where it was

dark enough to use the reagent. Schlegelmilch went with

him as a passenger.

26. The Defendant’s home was searched by Cumberland

County officers. Schlegelmilch and Sellers remained

outside the residence some distance away. During this

search, law enforcement came to the conclusion that the

incident could not have happened as it was described to

them by Gamez and Blackett.

27. After the search, law enforcement asked Blackett and

Gamez if they would agree to go to the CCSO to be

interviewed on August 17. They agreed and Cumberland

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County detectives arranged to contact Schlegelmilch about

the time and place for this interview. At the least, Blackett

specifically agreed that night to go to the August 17, 2011

interview and Gamez, being present when the question

was posed, did not object in any way.

28. Upon return to base, Blackett and Gamez had their

liberty restricted to base and were not allowed to live at the

Carmichael residence. Their sleeping location was

restricted to the conference room at headquarters. While

liberty restrictions were not unusual for soldiers, First Sgt.

Schlegelmilch, had not been involved in a restriction of this

type. However, this restriction was not for punishment,

but for concern over the safety and welfare of the soldier,

including fear of retaliation (the victim was the neighbor of

the defendant), fear of reprisals and gossip among other

soldiers, and safety of Gamez from harm to himself (he had

already attempted suicide one previous time). Criminal

investigation and general law enforcement were not

considered as a part of this decision.

29. On the 17th of August, Schlegelmilch received a call

from CC detectives setting up an interview with Gamez

and Blackett for that day.

30. On the morning of the 17th Gamez went about his

duties. At some point Gamez came to headquarters and

Sellers, Schlegelmilch, Gamez and Blackett went to the

CCSO in the same vehicle. At no time did Gamez object to

going. He was under no compulsion to do so. Though

escorted by Schlegelmilch and Sellers, neither had the

authority to force Gamez to go to the Cumberland County

Sheriff’s Office or to give an interview.

31. Upon arriving at the CCSO the four signed in. Sellers

and Blackett went into one room and Schlegelmilch and

Gamez went into another. Detective Gagnon joined

Schlegelmilch and Gamez in that interview room.

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32. At no point was Schlegelmilch conducting any type of

investigation. At no time did Gamez object to talking with

law enforcement.

33. Det. Gagnon conducted an interview with Gamez. In

the room was Gagnon, Schlegelmilch, and Gamez. At the

beginning of the interview Gagnon explained to Gamez

that the military had different rules than civilians. She

explained that she wanted to make sure Gamez was there

because he wanted to be there and that he was not ordered

to be at the Sheriff’s Office, nor was he ordered to give an

interview. She specifically asked Gamez if he wanted to be

at the Sheriff’s Office or whether he was ordered to be

there. He replied that he wanted to be there and he was

there on his own. He was asked if he wanted his first

sergeant in the room during the interview and he said he

did.

34. At no time was Gamez restrained in any way. He was

free to leave and not answer questions. His demeanor was

cooperative. At no time did Schlegelmilch require him to

answer any questions. At one point during the interview

Reyes knocked on the interview room door and called for

Schlegelmilch to leave the room out of concern that it would

appear Gamez was being required to give the interview.

After Gagnon explained to him that Gamez requested

Schlegelmilch to be in the room Gagnon went back in the

room and again asked Gamez, alone, about her presence.

Gamez told Gagnon that he would not speak to Gagnon

without Schlegelmilch being present.

35. At the end of the interview, Gamez was released to go

about his business and he left the CCSO.

36. At no time did anyone associated with Harnett County

law enforcement or Cumberland County law enforcement

request that Gamez be detained prior to his actual arrest,

and at no time did anyone associated with either agency

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request Schlegelmilch or others in the Army to elicit

information from Gamez.

37. During the day of August 18, 2011 officers with the

Harnett County Sheriff’s Office and the Cumberland

County Sheriff’s Office discovered the body of Vincent

Carlisle in the woods off of Shady Grove Road in Harnett

County. The location was discovered by using cell phone

data from the phones of Blackett and Gamez pinpointing

their location during the night of August 14, 2011.

38. Based upon the location of the body and the fact that

shell casings and projectiles were found near and under

Carlisle’s body, it became clear to law enforcement that the

killing had occurred in Harnett County and that the

version of events given to them by Blackett and Gamez was

not the truth.

39. At that point, a decision was made to arrest the

defendant. This decision was not told to Schlegelmilch.

40. Schlegelmilch first realized that Blackett had lied to

her about what happened after Gamez’s mother called her

and informed her that Carlisle’s body had been found.

Upon receiving this information she went to the building

where Gamez and Blackett had been placed and saw law

enforcement from Harnett and Cumberland counties

present at headquarters. At that point she pulled Gamez

aside and told him that she knew Blackett had lied to her

and she asked Gamez what happened. She did not do this

at the direction of law enforcement.

41. At that point Gamez told her that Gamez and Blackett

had invited Carlisle over to their house to confront him

about a break-in at their house. Once there, Gamez said

they started beating and choking him. Gamez told her that

it got out of hand and they took Carlisle to the woods.

Gamez told her that he drove. While Blackett took Carlisle

into the woods Gamez drove around. After a few minutes

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Blackett called him telling him to come back and get him.

When Gamez picked Blackett up, Blackett told Gamez that

Carlisle tried to get away and he shot Carlisle.

42. After some time had passed, Schlegelmilch told this to

Cumberland County detectives and later gave this

statement to Harnett County law enforcement.

43. Gamez and Blackett were arrested on August 18, 2011

and charged with the murder of Vincent Carlisle. They

were placed in the Harnett County jail. Gamez was

appointed an attorney.

44. On August 18, 2011 Gamez was read his Fifth

Amendment rights and did not waive them, nor did he give

a statement to law enforcement.

45. Separation proceedings from the Army were begun on

Gamez on August 25, 2011. He was personally served with

those papers at the Harnett County detention center by

Captain Lett on August 31, 2011 and waived his rights to

counsel and a hearing, and to propose any defense, and to

contest the decision to discharge him.

46. From the time Gamez was arrested, Schlegelmilch

visited Gamez in the detention center, talked to him on the

phone and the two wrote letters to each other. The letters

were friendly in nature.

47. On August 31, 2011 Schlegelmilch wrote a letter to

Gamez while he was in the Harnett County detention

center. At the end of the letter she inquired of Gamez what

happened that night. She stated that “I really want to

know why all this took place. Will you tell me the real

reason this all happen[e]d? It can’t be just over a break-in.

I am going to try to go to your court date on the 6th, if I can.”

48. In response, Gamez wrote Schlegelmilch on

September 2, 2011 acknowledging receipt of her letter and

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telling her that he would have his lawyer get the

September 2nd letter to her. He went on to tell her that he

and Blackett asked Carlisle to their house, he tried to run

so they caught him, handcuffed him, beat him, threatened

him, “bagged” him and . . . drove him to the woods. Then

Blackett took him into the woods and shot him while

Gamez drove around.

49. Gamez was under no compulsion to write this letter

and did so on his own volition. This letter was not the

result of any interrogation by law enforcement.

Based on these findings, the trial court concluded that none of Defendant’s

statements were “the product of any custodial interrogation by law enforcement or

the equivalent of law enforcement,” that “[e]ach of the statements was freely and

voluntarily given by the Defendant and [was] not coerced by anyone,” and that the 2

September 2011 letter “was freely and voluntarily written by him and given to

[Sergeant Schlegelmilch] . . . . not as a result of any interrogation by her or anyone

else.”

On 6 February 2017, Defendant entered an Alford plea to the charges of

second-degree murder, aiding and abetting a first-degree kidnapping, and conspiracy

to commit kidnapping. As part of the plea arrangement, the State took a voluntary

dismissal of the charge of concealing the death of a person and Defendant reserved

his right to appeal the trial court’s denial of his motion to suppress. Defendant gave

timely notice of appeal to this Court.

Analysis

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On appeal, Defendant contends that the trial court erred in denying his motion

to suppress (1) the oral statement he made to Sergeant Schlegelmilch on 18 August

2011; and (2) the 2 September 2011 letter he sent her from jail.1 He contends that

the suppression of these statements to Sergeant Schlegelmilch was required because

he did not receive Miranda warnings before making them despite the fact that the

statements were made during custodial interrogation. In making this argument, he

contends that based on prior decisions from this Court Sergeant Schlegelmilch

effectively served as a law enforcement officer at the time the statements were given,

thereby triggering his right to receive Miranda warnings. We address in turn his

arguments as to each of these statements.

I. 18 August Oral Statement

“When a motion to suppress is denied, this Court employs a two-part standard

of review on appeal: The standard of review in evaluating the denial of a motion to

suppress is whether competent evidence supports the trial court’s findings of fact and

whether the findings of fact support the conclusions of law.” State v. Jackson, 368

N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted).

“Unchallenged findings of fact are deemed to be supported by competent evidence and

are binding on appeal. Conclusions of law are reviewed de novo and are subject to

1 Because his appeal is limited to those two issues, he has waived his right to challenge the

trial court’s rulings as to the remaining evidence referenced in his motion to suppress.

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full review.” State v. Warren, 242 N.C. App. 496, 498, 775 S.E.2d 362, 364 (2015)

(internal citations and quotation marks omitted), aff’d per curiam, 368 N.C. 756, 782

S.E.2d 509 (2016).

It is well established that Miranda warnings are required to be given when a

defendant is subjected to custodial interrogation. See, e.g., State v. Gaines, 345 N.C.

647, 661, 483 S.E.2d 396, 404, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997)

(“[The North Carolina Supreme Court] has consistently held that the rule of Miranda

applies only where a defendant is subjected to custodial interrogation.”). This Court

has previously explained the potential applicability of Miranda to members of the

military being investigated for crimes under civilian law.

In Miranda v. Arizona, the Supreme Court defined

custodial interrogation as questioning initiated by law

enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in

any significant way. When dealing with a defendant who

is a member of the armed forces and whose statement is

given to a superior officer, the inquiry becomes whether a

reasonable Marine in [the defendant’s] situation would

believe his freedom of movement was limited to the same

extent as if [he] were under formal arrest.

State v. Walker, 167 N.C. App. 110, 123-24, 605 S.E.2d 647, 657 (2004) (internal

citations and quotation marks omitted), vacated in part on other grounds, 361 N.C.

160, 695 S.E.2d 750 (2006).

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Our Supreme Court has explained that “[b]ecause Miranda is limited to

custodial interrogations, statements made to private individuals unconnected with

law enforcement are admissible so long as they were made freely and voluntarily.”

In re W.R., 363 N.C. 244, 248, 675 S.E.2d 342, 344 (2009) (citation and quotation

marks omitted). Our courts have recognized exceptions to this general rule, however,

where a private individual is “acting as an agent of law enforcement,” id., or, in the

military context, under certain circumstances where a member of the armed forces is

subject to custodial interrogation by a superior officer, Walker, 167 N.C. App. at 124,

605 S.E.2d at 657.

This Court has addressed the applicability of Miranda in the military context

in two prior cases. First, in State v. Davis, 158 N.C. App. 1, 582 S.E.2d 289 (2003),

the defendant, who was a Marine, received a phone call warning him that deputy

sheriffs were on the way to arrest him because he was a suspect in a murder. The

defendant told his sergeant that he needed to talk to a lawyer. When his sergeant

asked him why, he refused to answer. The defendant was escorted shortly thereafter

to the office of his platoon commander, Chief Warrant Officer Kenneth Lee Brown.

Id. After Brown was informed of the defendant’s request, he asked the defendant “if

he was involved in the murder and defendant replied ‘sort of.’ Brown then said: ‘Well,

are you involved or not involved? Yes or no question.’” Id. The defendant proceeded

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to admit that he was, in fact, involved and that he had been told that the victim had

raped his wife. Id.

On appeal, this Court addressed the issue of whether the statements made to

Brown “were the product of a custodial interrogation” for purposes of Miranda. Id.

We first considered the “military context” of the interrogation, stating the following:

In deciding whether the Platoon Commander’s

questioning of defendant constituted a custodial

interrogation, we must consider the realities and

necessities of military life. We cannot disregard the

military context. The United States Supreme Court has

long recognized that the military is, by necessity, a

specialized society separate from civilian society.

Requiring a member of the armed forces to choose either to

disregard a direct question of a commanding officer or

forego his or her Fifth Amendment rights, will risk

undermining the discipline and order that is the necessary

hallmark of our military. Those members of the armed

forces who commendably act in accordance with their

training should not, for their reward, be punished by being

stripped of their Fifth Amendment rights.

....

The United States Supreme Court has observed that

the military’s law is that of obedience. No question can be

left open as to the right to command in the officer, or the

duty of obedience in the soldier. Indeed, the military can

only function with strict discipline and regulation that

would be unacceptable in a civilian setting.

A superior officer must be assured that a soldier will

react immediately and without question to a command on

the battlefield. That instinctive reaction has to be instilled

in a soldier long before he goes to war: The inescapable

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demands of military discipline and obedience to orders

cannot be taught on battlefields; the habit of immediate

compliance with military procedures and orders must be

virtually reflex with no time for debate or reflection.

....

The United States Court of Appeals for the Armed

Forces has recognized that the unique environment of the

military must be taken into account when determining,

under Miranda, the admissibility of statements made to

commanding officers. [The Court has] stated: In the armed

forces, a person learns from the outset of recruit training

to respond promptly to the direct orders and the indirect

expectations of superiors and others, such as military

police, who are authorized to obtain official information.

Failure to respond to direct orders can result in criminal

offenses unknown in civilian life.

....

The Supreme Court has stressed that the rights of

men in the armed forces must perforce be conditioned to

meet certain overriding demands of discipline and duty,

and the civil courts are not the agencies which must

determine the precise balance to be struck in this

adjustment. Only Congress has the authority to decide

how to balance the rights of men and women in the service

with the needs of the armed forces: The Framers expressly

entrusted that task to Congress.

Yet, if civilian courts may hold . . . that unwarned

questioning by superior officers is not custodial

interrogation and does not violate Miranda in the civilian

courts, then that balance will be substantially disrupted.

Although a member of the armed forces should not be

encouraged to debate whether or not to answer his

superior’s question, a rule making his responses admissible

would effectively mandate that he do so. On the other

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hand, a man or woman in the service who acts instinctively

and answers automatically—as he or she has been

trained—can hardly be considered to have acted

voluntarily to the same extent as a civilian.

Id. at 6-8, 582 S.E.2d at 293-95 (internal citations, quotation marks, ellipses,

emphasis, and brackets omitted).

We held that because Brown “was both a commissioned officer and Platoon

Commander [and thus] had authority to order the arrest” of the defendant, he “was

effectively functioning as a law enforcement officer at the time that defendant’s

statements were elicited.” Id. at 9, 12, 582 S.E.2d at 295, 296. We further ruled that

for purposes of Miranda the defendant had been in custody while he was being

questioned. With regard to this issue, we explained that the trial court “should have

considered what a reasonable Marine in defendant’s position, under the totality of

the circumstances, would have believed. A court may make this determination only

by reviewing the expectations governing Marines.” Id. at 10, 582 S.E.2d at 296.

We observed that the defendant had not voluntarily subjected himself to

questioning by Brown in that the defendant “could not, while he was being

questioned, leave Brown’s office without Brown’s permission,” and that Brown’s

question as to whether the defendant had been involved in the murder sounded

“remarkably like an order.” Id. at 10, 11, 582 S.E.2d at 296. For these reasons, we

concluded “that a custodial interrogation had occurred and that defendant’s

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Opinion of the Court

statements to Brown should not have been admitted into evidence.” Id. at 12, 582

S.E.2d at 297.

We next applied these principles in State v. Walker. The defendant in Walker

was a Marine who had been convicted of robbery with a dangerous weapon and

assault with a deadly weapon inflicting serious injury. At trial, statements that the

defendant made to his superior officer, Master Gunnery Sergeant Dean, were

admitted into evidence. The defendant argued on appeal that because he had not

been read his Miranda rights prior to giving these statements, the trial court should

have excluded them. Walker, 167 N.C. App. at 117, 123, 605 S.E.2d at 651, 656-57.

This Court “acknowledge[d] that interrogation by a superior officer in the military

raises a significant risk of inherent compulsion, which is of the type Miranda was

designed to prevent.” Id. at 124, 605 S.E.2d at 657 (citation omitted). Nevertheless,

we held that the record did “not indicate [that the defendant] was ‘in custody’ at the

time he” made the statements at issue such that Miranda warnings were not

required. Id.

The record shows that . . . Walker was questioned by First

Sergeant Nylon, of the Naval Criminal Investigative

Services, and Investigator Melton, and at each questioning

he received Miranda warnings. Dean did not see Walker

until the next day. Dean testified that when Walker came

in the next morning “we started talking in my office, and

basically he explained to me what the agent wanted.” Dean

then asked Walker if “he had anything to do with this

mess” and whether he was carrying a weapon of any kind.

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Opinion of the Court

Walker told Dean he was at [the nightclub] that night, but

he had only gone to watch [another Marine’s] back because

[he] was having some kind of dispute with the owner’s

boyfriend. Walker also told Dean that he carried a baseball

bat of some type and he remained outside watching the

bouncers. There was no testimony that Walker felt he

could not leave or that he had to answer Dean’s questions.

Instead, it appears that Dean was simply inquiring into

why Walker was being questioned. Since Dean’s

questioning of Walker did not constitute a custodial

interrogation, Dean was not required to administer

Miranda warnings prior to their conversation.

Id. (quotation marks and ellipses omitted).

In the present appeal, Defendant argues that Davis is controlling because like

the defendant in that case, he was interrogated by a superior officer — Sergeant

Schlegelmilch — who had the power to arrest him. The State, conversely, contends

that Davis applies only in situations where a soldier is questioned by a commissioned

officer because only commissioned officers possess independent arrest authority.

Federal law governs the power of arrest in the armed forces. 10 U.S.C. § 809

states, in pertinent part, as follows:

(a) Arrest is the restraint of a person by an order, not

imposed as a punishment for an offense, directing him to

remain within certain specified limits. Confinement is the

physical restraint of a person.

(b) An enlisted member may be ordered into arrest or

confinement by any commissioned officer by an order, oral

or written, delivered in person or through other persons

subject to this chapter. A commanding officer may

authorize . . . noncommissioned officers to order enlisted

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Opinion of the Court

members of his command or subject to his authority into

arrest or confinement.

10 U.S.C. § 809 (2012) (emphasis added).

Thus, a commanding officer is authorized to delegate his or her arrest

authority to a non-commissioned officer. In situations where this has occurred, the

non-commissioned officer’s interrogation of a soldier can trigger the need for Miranda

warnings.2

It is undisputed that Sergeant Schlegelmilch was a non-commissioned officer

at all times relevant to this case. Therefore, in order to resolve the issue of whether

Defendant was entitled to Miranda warnings when he made the 18 August oral

statement to her, it is necessary to first determine whether Sergeant Schlegelmilch

had previously been delegated authority to arrest Defendant by a commanding officer

as authorized by 10 U.S.C. § 809(b).

Defendant has not challenged any of the trial court’s findings of fact contained

in its Suppression Order, and we are therefore required to accept them as binding on

appeal. See Warren, 242 N.C. App. at 498, 775 S.E.2d at 364 (2015). However,

although the trial court noted in its order that Sergeant Schlegelmilch was a non-

commissioned officer, it did not make any findings of fact as to whether the authority

2 We note that under federal law, any enlisted member of the armed forces who “willfully

disobeys the lawful order of a . . . noncommissioned officer . . . shall be punished as a court-martial

may direct.” 10 U.S.C. § 891 (2012).

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Opinion of the Court

to arrest Defendant had, in fact, been delegated to her. We note from our review of

the transcript that at the suppression hearing Sergeant Schlegelmilch testified that

earlier on the morning of 18 August she had placed Defendant and Blackett into

separate rooms with a non-commissioned officer stationed in each room to make sure

they did not leave. The trial court failed to make any findings, however, on the

circumstances under which Sergeant Schlegelmilch took this action or who

authorized her to do so. Such findings are central to the question of whether Sergeant

Schlegelmilch should be deemed to have been acting as a law enforcement officer for

purposes of Miranda.

Furthermore, in its analysis the trial court did not fully apply the correct legal

standard with regard to this issue. The court appropriately made findings of fact and

conclusions of law on the issue of whether Sergeant Schlegelmilch acted at the behest

of civilian law enforcement officers in questioning Defendant such that she was acting

as an agent of those officers. However, the trial court neither acknowledged Davis

and Walker nor analyzed the evidence in light of the legal principles set out therein.

Indeed, the Suppression Order bears no indication that the trial court recognized the

potential applicability of Miranda if Sergeant Schlegelmilch had, in fact, been

delegated the authority to arrest Defendant and then proceeded to question him

under circumstances amounting to custodial interrogation.

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Opinion of the Court

Nor did the trial court make findings about the specific degree to which

Defendant’s liberty had been restricted at the time he made the 18 August statement

to Sergeant Schlegelmilch. As noted above, Sergeant Schlegelmilch testified that at

some time during the morning of 18 August 2011, she placed Defendant and Blackett

into separate rooms with assigned non-commissioned officers posted in each room as

guards to ensure that they did not leave. This restriction on their movements was

significantly greater than the restrictions that had been placed on Defendant and

Blackett two days earlier, which required them to remain on base and sleep in the

same conference room but permitted them to move about the base, complete job

assignments, and fulfill other responsibilities under supervision. The trial court’s

order, however, did not address the change in their confinement or mention the

specific types of restrictions to which Defendant was subject at the time he made the

18 August statement to Sergeant Schlegelmilch.

As discussed above, Miranda warnings are required only when the defendant

is subjected to custodial interrogation. Gaines, 345 N.C. at 661, 483 S.E.2d at 404.

“A person is in custody for purposes of Miranda when it is apparent from the totality

of the circumstances that there is a formal arrest or restraint on freedom of movement

of the degree associated with a formal arrest.” State v. Garcia, 358 N.C. 382, 396, 597

S.E.2d 724, 736 (2004) (citation and quotation marks omitted), cert. denied, 542 U.S.

1156, 161 L. Ed. 2d 122 (2005). Thus, findings as to the specific manner in which

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Opinion of the Court

Defendant’s freedom of movement had been restrained at the time he was questioned

by Sergeant Schlegelmilch are necessary in order to determine whether he was

subjected to custodial interrogation.

This Court has explained that “[i]n ruling upon a motion to suppress evidence,

the trial court must set forth in the record its findings of fact and conclusions of law.

The general rule is that the trial court should make findings of fact to show the bases

of its ruling.” State v. McCrary, 237 N.C. App. 48, 51, 764 S.E.2d 477, 479 (2014)

(internal citations, quotation marks, and brackets omitted), aff’d in part and

remanded, 368 N.C. 571, 780 S.E.2d 554 (2015).

Findings [of fact] and conclusions [of law] are required in

order that there may be a meaningful appellate review of

the decision on a motion to suppress.

. . . [W]hen the trial court fails to make findings of fact

sufficient to allow the reviewing court to apply the correct

legal standard, it is necessary to remand the case to the

trial court. Remand is necessary because it is the trial

court that is entrusted with the duty to hear testimony,

weigh and resolve any conflicts in the evidence, find the

facts, and, then based upon those findings, render a legal

decision, in the first instance, as to whether or not a

constitutional violation of some kind has occurred.

State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 66-67 (2012) (internal citations

and quotation marks omitted). See State v. McKinney, 361 N.C. 53, 63, 65, 637 S.E.2d

868, 875, 876 (2006) (“We . . . should afford the trial court an opportunity to evaluate

the validity of [a] warrant using the appropriate legal standard,” where the trial court

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Opinion of the Court

makes only “limited findings of fact,” none of which “indicate[ ] whether the trial court

would have . . . upheld the validity of the warrant” if it had applied the correct legal

standard.)

In McCrary, the defendant appealed the trial court’s denial of his motion to

suppress evidence resulting from a blood test. The trial court made the following

factual findings: Deputy Justin Fyle responded to the call of a homeowner after the

defendant pulled into the homeowner’s driveway and apparently fell asleep in his car.

Deputy Fyle arrested the defendant after administering an Alcosensor test yielding

results “so high that Deputy Fyle determined that there may be a need for medical

attention for the defendant.” McCrary, 237 N.C. App. at 49, 764 S.E.2d at 478

(quotation marks omitted). The defendant was taken to the hospital at his request,

and while there he grew increasingly belligerent and refused to consent to a blood

test. Deputy Fyle ultimately collected the defendant’s blood without a warrant,

approximately three hours after he had responded to the homeowner’s call. Id. at 50,

764 S.E.2d at 478-79.

The defendant was convicted of driving while impaired. On appeal, he

contended that the results of the warrantless blood test should have been suppressed

because the test was unconstitutional based upon the legal standard established in

Missouri v. NcNeely, a United States Supreme Court case that had been decided “just

over a month after the trial court ruled upon [the defendant’s] motion to suppress.”

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Id. at 54, 764 S.E.2d at 481. The defendant did “not challenge the trial court’s

findings of fact but argue[d] only that his case [was] similar to the situation presented

in Missouri v. McNeely[.]” Id. The defendant “focuse[d] on the lack of findings of fact

as to the time that it would have taken Deputy Fyle to obtain a search warrant for

the blood test.” Id.

In the defendant’s appeal, he noted a number of factual issues that had not

been decided by the trial court. We declined to address these issues, explaining, in

pertinent part, as follows:

[A]ll of these questions are squarely within the authority

of the trial court to make the factual findings as to these

issues and to make the appropriate legal conclusions upon

those facts. It is the trial court that is entrusted with the

duty to hear testimony, weigh and resolve any conflicts in

the evidence, find the facts, and, then based upon those

findings, render a legal decision, in the first instance, as to

whether or not a constitutional violation of some kind has

occurred.

....

Defendant is correct that the trial court did not make any

specific findings addressing the availability of a magistrate

at the time of the incident and the probable delay in

seeking a warrant, although Deputy Fyle did testify about

this matter, but it seems . . . that the trial court considered

the time factor in mentioning [that Deputy Fyle had a

reasonable belief that there was an exigency based upon

the] “additional time and uncertainties in how much

additional time would be needed to obtain a search

warrant.” Without findings of fact on these details,

however, we cannot properly review this conclusion. We

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Opinion of the Court

must therefore remand this matter to the trial court for

additional findings of fact as to the availability of a

magistrate and the “additional time and uncertainties” in

obtaining a warrant, as well as the “other attendant

circumstances” that may support the conclusion of law that

exigent circumstances existed.

Id. at 55-56, 57, 764 S.E.2d at 482, 483 (internal citations and quotation marks

omitted).

Thus, because we were unable to properly review the trial court’s order, we

remanded the case to the trial court for additional findings of fact. Id. at 57, 764

S.E.2d at 483. Our decision was appealed to the Supreme Court. See State v.

McCrary, 368 N.C. 571, 780 S.E.2d 554 (2015). In its opinion, the Court stated the

following:

[W]e remand to the Court of Appeals with instructions to

that court to vacate the portion of the trial court’s . . . order

denying defendant’s motion to suppress [the warrantless

blood test] and further remand to the trial court for (1)

additional findings and conclusions—and, if necessary—a

new hearing on whether the totality of the events

underlying defendant’s motion to suppress gave rise to

exigent circumstances, and (2) thereafter to reconsider, if

necessary, the judgments . . . entered[.]

Id. at 571-72, 780 S.E.2d at 554.

Here, the trial court similarly did not make factual findings on several issues

that were integral to the question of whether a Miranda violation had occurred. Nor

— as discussed above — did the trial court fully apply the correct legal standard

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Opinion of the Court

applicable to this issue. Therefore, we are presently unable to determine whether

Miranda warnings were required at the time of Defendant’s 18 August statement in

response to Sergeant Schlegelmilch’s questioning.

Because trial courts have “institutional advantages over appellate courts in the

application of facts to fact-dependent legal standards,” we hold that a determination

as to whether Sergeant Schlegelmilch was acting as a law enforcement officer and

engaged in custodial interrogation of Defendant under the principles articulated in

Davis “should, in the first instance, be made by the trial court.” McKinney, 361 N.C.

at 64-65, 637 S.E.2d at 876 (citation and quotation marks omitted). We therefore

vacate the portions of the Suppression Order relating to the 18 August oral statement

and remand to the trial court for additional findings of fact and conclusions of law

along with a new hearing, if necessary, on that issue.

II. 2 September Letter

We reach a different result with regard to the statements contained in the 2

September letter written by Defendant from jail to Sergeant Schlegelmilch. The

record reveals that while Defendant was being held in the Harnett County Detention

Center following his arrest the decision was made to initiate military discharge

proceedings against him. The discharge process began on 25 August 2011. On 31

August 2011, Captain Lett hand-delivered a notice of separation to Defendant. That

same day, Defendant signed a memorandum stating, in pertinent part, that he

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Opinion of the Court

desired to waive his “right to consult with a qualified representative from Trial

Defense Services and wish[ed] to continue immediately with the proceedings.”

While Defendant was in jail, he exchanged a number of letters with Sergeant

Schlegelmilch, several of which were given to law enforcement officers. Sergeant

Schlegelmilch wrote a letter to Defendant dated 31 August 2011, which read as

follows:

I hope today is a good day for you. I got your computer but

can’t get it to work [right]. Not sure why. But I will keep

trying. Next time you see your lawyer ask him if he can do

a power of [attorney] from you for me so I can help take

care of your stuff for you and your mom.

I love talking to your mom she is such a great person. She

is like my best friend. You are lucky to have her as your

mom.

Be careful what you tell the other inmates they aren’t the

most honest people and they will tell the police in order to

help themselves.

I really want to [know] why all this took place will you tell

me the real reason this all happened it can’t be just over a

break in. I am going to try to go to your court date on the

6th if I can.

Hope your visit from Cpt. Lett went well. If you have any

questions let me [know] and I will get you the answers.

So what do you do to pass the time? I think you should

[write] a book about your life I would love to read it. Who

[knows] we could get it published.

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Opinion of the Court

I have one other question. Why him you [knew] him and

worked out together were drugs involved? We got to get

you down to at least a murder 2 charge.

Be strong and know we are always thinking about you!!

Becky Schlegelmilch

Defendant replied to Sergeant Schlegelmilch’s questions in a letter dated 2

September 2011 in which he gave the following account of Carlisle’s death: After he

had witnessed Carlisle in the act of breaking into the 102 Carmichael Drive home,

Blackett lured Carlisle back to the residence by telling him that Blackett was

interested in buying drugs from him. Upon returning to 102 Carmichael Drive,

Carlisle soon realized that he had been induced to return there on false pretenses.

He attempted to flee, but Defendant “choked him out and took him to the ground.”

Blackett then began to beat Carlisle. At that point, Defendant handcuffed Carlisle,

questioned him about the robbery, and began beating him when he denied being

involved. Once Carlisle finally admitted to having taken part in the break-in,

Defendant responded that Carlisle would “get[ ] a second chance” and that they would

not report him to the police.

Defendant argues that this letter should have been suppressed because the

letter from Sergeant Schlegelmilch asking him to explain how Carlisle had actually

died constituted custodial interrogation. We are satisfied, however, that the

circumstances under which Defendant’s letter was written did not implicate

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Opinion of the Court

Miranda. First, we note that Defendant has failed to cite any caselaw in support of

the proposition that questioning conducted through such an exchange of letters can

constitute custodial interrogation for purposes of Miranda. Nor has our own research

revealed any legal authority in support of such an argument.

Furthermore, when Defendant responded to Sergeant Schlegelmilch’s letter,

he was in the midst of being discharged from the military. While Defendant was not

formally removed from Alpha Company until 14 September 2011, the record makes

clear that Defendant was aware of the discharge proceedings at the time he

responded to Sergeant Schlegelmilch’s letter and was not contesting them. In short,

these circumstances simply do not amount to the type of coercive environment that

Miranda was intended to address.3

Conclusion

For the reasons stated above, we (1) affirm the portions of the Suppression

Order denying Defendant’s motion to suppress the statements made by him to

detectives on 16 and 17 August 2011 and in the 2 September 2011 letter to Sergeant

Schlegelmilch; (2) vacate the portion of the order denying Defendant’s motion to

suppress the 18 August 2011 oral statement made to Sergeant Schlegelmilch; and (3)

3 We also observe that the letter from Sergeant Schlegelmilch was not written on official

letterhead, was very informal in nature, and was signed “Becky.”

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Opinion of the Court

remand for additional findings of fact, conclusions of law, and — if necessary — a new

hearing as to whether the 18 August 2011 oral statement was made during custodial

interrogation such that Miranda warnings were required.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH

INSTRUCTIONS.

Judge INMAN concurs.

Judge BRYANT concurs in the result only.

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