SUPREME COURT OF NORTH CAROLINA ****************************************************** **************************************************

Transcription

1 No. 190A09 FIFTEEN-B DISTRICT SUPREME COURT OF NORTH CAROLINA ****************************************************** IN THE MATTER OF ) ) From Orange J.D.B., ) 05 J 115 Juvenile ) ************************************************** 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 **************************************************

2 i INDEX TABLE OF AUTHORITIES ii QUESTION PRESENTED INTEREST OF AMICI CURIAE STATEMENT OF THE CASE STATEMENT OF THE FACTS 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 CONCLUSION CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2) CERTIFICATE OF FILING AND SERVICE

3 ii TABLE OF AUTHORITIES Cases In re Eller, 331 N.C. 714, 417 S.E. 2d 479 (1992) In re I.R.T., 184 N.C. App. 579, 647 S.E.2d 129 (2007) 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) In re Vinson, 298 N.C. 640, 260 S.E. 2d 591, (1979) 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) 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) 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 , 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) 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) Schall v. Martin, 467 U.S. 253, 104 S.Ct (1984) 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) In re Killitz, 59 Or.App. 720, 651 P.2d 1382 (1982) 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) Statutes N.C. Gen. Stat (a)(6) N.C. Gen. Stat. 7B-2000 (2005) N.C. Gen. Stat. 7B-2101 (2005)... 2, 5, 9 N.C. Gen. Stat. 7B-3000 (b) (2005)... 9 Other Authority Marty Beyer, Immaturity, Culpability and Competency in Juveniles: A Study of 17 Cases, 15 Crim. Just. 26, (2000) Tamar Birckhead, The Age of the Child: Interrogating Juveniles After Roper v. Simmons, 65 Wash. & Lee L. Rev. 385, (2008) Thomas Grisso, et. al., Juveniles Competence to Stand Trial: A

4 iii Comparison of Adolescents and Adults Capacities as Trial Defendants, 27 Law & Hum. Behav. 333, (2002) Paul Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century Schoolhouse, 52 Loy. L. Rev. 39, 85 (2006):... 8

5 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

6 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.

7 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 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,

8 4 came and removed J.D.B. from the class. R. Add. p. 3, T. p. 40, line 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 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 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 J.D.B. then asked the officer whether he would still be in

9 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 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 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

10 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

11 7 did know of J.D.B. s young age at the time he initiated his questioning. T. p. 23, lines 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 , 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.

12 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 , 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

13 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. 7B- 2101(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

14 10 purposes of appointing counsel in delinquency proceedings, N.C. Gen. Stat. 7B (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

15 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, (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, (2000). See also Tamar Birckhead, The Age of the Child: Interrogating Juveniles After Roper v. Simmons, 65 Wash. & Lee L. Rev. 385, (2008) (summarizing studies demonstrating that juveniles are particularly susceptible when interrogated by police officers and other authority figures).

16 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 (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

17 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.,

18 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

19 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 , 948 P.2d at 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.

20 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 8 th day of June Electronically Submitted S. Hannah Demeritt Attorney at Law P.O. Box 3201 Durham, NC (919) shdlaw@earthlink.net N.C. Bar No 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 (919) fedders@ .unc.edu N.C. Bar No

21 17 Mark Dorosin Attorney at Law UNC School of Law Center for Civil Rights Campus Box 3382 Chapel Hill, N.C (919) N.C. Bar No 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 8 th day of June, Electronically Submitted S. Hannah Demeritt Attorney for Amici

22 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 on June 8, 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 Lisa Skinner Lefler Attorney for Juvenile-Appellant Post Office Box Wilmington, N.C (910) llefler@ec.rr.com N.C. Bar No Electronically Submitted S. Hannah Demeritt Attorney at Law P.O. Box 3201 Durham, NC (919) shdlaw@earthlink.net N.C. Bar No