In Re Butts , 157 N.C. App. 609 ( 2003 )

WYNN, Judge,

concurring in part, dissenting in part.

I agree with majority’s well-reasoned opinion; however, I am compelled to dissent and allow the State an opportunity to appeal to our Supreme Court the issue of whether the ultimate disposition of awarding a new trial in this matter overrules our earlier case of State v. Pugh, 138 N.C. App. 60, 530 S.E.2d 328 (2000) (Timmons-Goodson, J., dissenting).¹

In Pugh, this Court upon holding that the trial court erred in determining that the child was not competent to testify based on an inadequate inquiry, stated:

We remand to the juvenile court, for a determination consistent with this opinion, the issue of D.R.’s competency to testify. If, after conducting an appropriate voir dire of D.R., the juvenile court determines that D.R. is incompetent to testify, the adjudicatory and dispositional order filed 23 March 1999 is affirmed. If, however, after proper inquiry, the juvenile court determines that D.R. is competent to testify, the juvenile shall be entitled to a new adjudicatory hearing.

Pugh, 138 N.C. App. at 68, 538 S.E.2d at 333.

In this case, upon determining that the trial court erred by admitting the juvenile’s confession without taking evidence and ruling on whether the juvenile was in custody when he made the statement, the majority awards a new trial rather than remanding the matter to the trial court for a determination of whether respondent was in custody at the time he signed an admission of guilt. Since an apparent conflict exists in the mandate of this case and that in Pugh, I dissent to allow the State the opportunity to certify this issue to our Supreme Court for a resolution of the two conflicting opinions.

1 . In dissent, Judge Timmons-Goodson stated that the error could not be cured by conducting a new competency hearing. Instead, she opined that “the juvenile is entitled to a new trial on the charges ....” Id. at 68. Since the juvenile did not appeal, as a matter of right under N.C. Gen. Stat. § 7A-30 (1999), the majority opinion was not reviewed by our Supreme Court.