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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: T.R.B.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Marjorie S. Canaday for respondent-appellant.
LEVINSON, Judge.
Respondent appeals from adjudication of delinquency for
commission of a first degree sex offense. The juvenile charges
arose from an incident occurring between respondent and C.C. (the
prosecuting witness's initials are used to preserve his privacy).
The two boys were seventh grade classmates in a self-contained
special education class. On 16 March 2001, C.C. spent the night
with respondent, who lived with his father. During the evening,
the boys watched movies in respondent's room while his father,
Willie Butts, watched TV in the living room. Butts owned several
guns, including a .357 magnum, which he usually kept near him, or
in a holster. Both boys acknowledge that at some point during thenight they engaged in sexual activity. However, their testimony
conflicted sharply regarding the nature of the sexual contact.
At the hearing, C.C. testified that after the boys watched a
movie, respondent took him to his father's bedroom and showed him
his father's .357 magnum gun. When they returned to respondent's
bedroom, respondent warned C.C. that if he “told anybody what was
about to happen, he'd shoot [him].” C.C. put on his pajamas and
got ready for bed, while respondent tried to convince him to
experiment with sexual activity, saying “it'll be fun.” When C.C.
refused, respondent became upset and pinned C.C. down on the bed.
He performed an act of oral sex on C.C. in which he bit his penis,
and then had anal intercourse with C.C. After respondent stopped,
he threatened to kill C.C. if he told anyone. The State presented
several other witnesses whose testimony generally corroborated
C.C.'s account of the events in question. C.C.'s mother testified
that her son was in a special education class, and took medications
for depression and “anger control.” Two weeks after he spent the
night with respondent, C.C. told his mother that respondent had
“pinned him down” and forced him to engage in sexual acts. Dr.
Mary Lou Cooke, a pediatrician, testified that C.C. had given her
an account of the incident consistent with his trial testimony.
She also testified that, notwithstanding the absence of physical or
medical indicators of abuse, she considered C.C.'s physical
examination to be “consistent” with his interview. Detective Robin
Carrasquillo testified regarding her investigation of the charges.
She first interviewed C.C. and his mother, and obtained a statementfrom C.C. She then interviewed respondent at the law enforcement
center, where respondent signed a statement admitting the
allegation in the petition.
Respondent testified at the hearing and denied all charges.
He testified that after the two boys watched a movie, they played
video games and then went to sleep. When he awoke later in the
night, C.C. was penetrating him from behind, and refused to stop.
Respondent “throwed [sic] him off” and went to sleep in the living
room. Respondent denied threatening C.C. with a gun, or performing
anal or oral sex on C.C. Respondent's testimony in this regard
conflicted with his admissions in a signed confession obtained by
Carrasquillo and introduced over respondent's objection. Ellen
Jones, the primary teacher for both boys, testified that C.C. had
“difficulty getting along” with other children and “conflict[ed]
with all the students in the classroom.” Jones also testified that
C.C. often told lies at school. Mr. Butts, respondent's father,
testified that his son had no access to any of his guns, which were
in a locked cabinet, and that he had noticed nothing unusual the
night that C.C. stayed over. Other evidence will be discussed as
necessary to resolve the issues presented herein.
(a) Any juvenile in custody must be advised prior to questioning:
. . . .
(3) That the juvenile has a right to have a parent, guardian, or custodian present during questioning; and
. . . .
(b) When the juvenile is less than 14 years of age, no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian, or attorney.
N.C.G.S. § 7B-2101(a)(3) and (b) (2001). Respondent notes that the waiver form he signed did not include any notification that he had the right to the presence of “a parent, guardian, or custodian . . . during questioning.” Moreover, it is undisputed that respondent was under 14 years old at the time, and that only Detective Carrasquillo and another officer were present when much of respondent's statement was obtained. Therefore, if respondent's confession was obtained during a custodial interrogation, it would be inadmissible. The rights protected by N.C.G.S. § 7B-2101 apply only to custodial interrogations. State v. Gaines, 345 N.C. 647, 661, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997) (statute “pertains only to statements obtained from a juvenile defendant as the result of custodial interrogation”). Thus, the threshold inquiry for a court ruling on a suppression motion based on G.S. § 7B-2101, is whether the respondent was in custody when the statement was obtained. “[I]n determining whether a suspect [is] in custody, an appellate court must examine all the circumstances surrounding the interrogation; but the definitive inquiry is 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, 827 (2001) (quoting Gaines, 345 N.C. at 662, 483 S.E.2d at 405). This requires the trial court to apply “'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)).
In the instant case, respondent argued to the trial court that he was in custody when his statement was taken, thus invoking his rights under G.S. § 7B-2101 to the presence of a parent, guardian, custodian, or attorney and to be informed of this right. Respondent also argued that the express terms of the statute did not allow for any exceptions to the bar on confessions taken froma child of 13 in the absence of a parent, guardian, custodian, or attorney. G.S. § 7B-2101 (“no in-custody . . . confession . . . may be admitted into evidence unless . . . made in the presence of” parent, etc.). However, the trial court did not rule on this issue. Instead, following arguments of counsel for respondent and the State on whether respondent was in custody, the court ruled as follows:
MR. GURLEY (respondent's attorney): . . . I filed the motion to suppress . . . in regards to North Carolina General Statute 7B- 2101(a)(3) and (b), “that no in-custody admission or confession . . . may be admitted. . . . I would be objecting to admitting into evidence based upon the . . . Statute sections we just cited. . . .
PROSECUTOR: Your Honor, he was not in custody at the time. . . .
THE COURT: Well, that's not really the issue, but I'm going to OVERRULE the OBJECTION on the grounds that Mr. Butts voluntarily left the interrogation room.
(emphasis added). Detective Carrasquillo continued testifying about her interview of respondent, until respondent again objected:
MR. GURLEY: Your honor, . . . I would OBJECT because I think it's obvious now that [respondent] is not free to leave . . . therefore, he would be in custody. THE COURT: OVERRULED. Again, that's not the issue. The Miranda rights were read, Mr. Butts voluntarily left the room during the interrogation. There [were] no violations.
(emphasis added). The trial court overruled respondent's objection on the basis that, inasmuch as Mr. Butts left the interview room of his own free will after respondent and Butts were apprised of their rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694(1966), the issue of whether respondent was in custody was rendered moot.
The trial court's ruling was predicated on the assumption that if respondent's father voluntarily absented himself from the room, there would be no violation of G.S. § 7B-2101. However, the statute protects the rights of the juvenile, which his parent cannot waive on his behalf. In State v. Branham, 153 N.C. App. 91, 98, 569 S.E.2d 24, 28 (2002), “[t]he trial court made findings . . . that defendant's mother refused to see him.” This Court held:
These . . . findings do not support the conclusion that the defendant's waiver and statement complied with N.C.G.S. § 7B-2101. Even if we assume that defendant's mother did not want to be present during defendant's interrogation, she did not have the ability to, in effect, waive his right to have her present during interrogation.
Id. at 98, 569 S.E.2d at 29 (emphasis added) (citation omitted); see also In re Ewing, 83 N.C. App. 535, 537, 350 S.E.2d 887, 888 (1986) (“finding that respondent's mother . . . waived respondent's juvenile rights is not equivalent to a finding that respondent knowingly and understandingly waived his rights. Furthermore, 'a parent, guardian, or custodian may not waive any right on behalf of the juvenile.'” (quoting N.C.G.S. § 7A-595(b) (2001)). We conclude the trial court erred by failing to determine whether respondent was in custody when he signed the statement.
The trial court's error was not harmless in light of the facts of this case. N.C.G.S. § 15A-1443 provides in part:
A defendant is prejudiced by errors . . . when there is a reasonable possibility that, had the error in question not been committed, adifferent result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.
N.C.G.S. § 15A-1443(a) (2001). “When a case turns on the credibility of the witnesses it is difficult to hold . . . an admission harmless.” State v. Wilson, 118 N.C. App. 616, 621, 456 S.E.2d 870, 873 (1995) (citing State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550 (1988)). In the instant case, the transcript does not establish that respondent confessed to committing a first degree sex offense while Mr. Butts was in the interrogation room. In this regard, Detective Carrasquillo testified in pertinent part as follows:
DETECTIVE CARRASQUILLO: I began speaking with them about the allegations. I explained to Mr. Butts and to [respondent] the allegations, what [C.C.] had told me, and basically I asked [respondent] if any of this happened. [Respondent] denied that anything had happened. I began explaining in a little bit more detail to [respondent] in the fact that it was important that the truth be told regardless of the situation. [Respondent] then told me that it may have happened but he was. . . .
QUESTION: [Respondent] told you what?
DETECTIVE CARRASQUILLO: [Respondent] then told me it may have happened but he was asleep. Mr. Butts then _ and I quote _ stated, “Damn it, boy, you know whether it happened or not.” At the time [respondent] said, “Yes, it happened.” Mr. Butts became upset and left the room.
Detective Carrasquillo's testimony indicates that when respondent admitted that “it might have happened” but that he “was asleep,” his father scolded him to make a definite statement oneway or the other, at which point respondent stated “yes, it happened” rather than “it might have happened.” While this statement may fairly be regarded as an admission that there was sexual contact between the boys, it is far from a confession to commission of a first degree sexual offense. There is nothing in this dialogue that constitutes a disavowal of respondent's initial contention that he was sleeping when the sexual contact began, much less an admission that he employed force or the use of a deadly weapon to sexually assault C.C. Further, while Detective Carrasquillo testified that before respondent made a statement, she had generally “explained to . . . [respondent] the allegations, what [C.C.] had told me[,]” Detective Carrasquillo's testimony did not establish that her explanation included a recitation of all of the elements of first degree sex offense. We conclude that respondent's statement that “it happened” is insufficient, without more detail, to constitute the equivalent of a full confession to first degree sex offense, so as to render the later admission of his written statement harmless.
Moreover, absent the signed confession, the evidence would have presented a much closer case. Without physical evidence or eyewitnesses, the only basis for the fact-finder to determine the truth of the matter was to weigh the credibility of C.C. and respondent. In this regard, C.C.'s account was supported by testimony from his mother, Dr. Cooke, and Detective Carrasquillo, whose testimony attested to the consistency of C.C.'s accounts of the events in question. On the other hand, respondent's fathertestified that respondent had no access to Mr. Butt's firearms, and that he noticed nothing unusual when C.C. spent the night. Moreover, Ms. Jones, who taught both boys in a special education class and is unrelated to either party, testified that it was C.C. who lied frequently, and who had social adjustment problems. In this context we conclude that without a signed confession “there is a reasonable possibility that . . . a different result would have been reached[.]” N.C.G.S. § 15A-1443(a) (2001).
We conclude the trial court's failure to properly determine whether respondent was in custody before admitting his statement to law enforcement officers constituted “reversible error which denied the [respondent] a fair trial conducted in accordance with law.” N.C.G.S. § 15A-1447(a) (2001). Accordingly, respondent is entitled to a new adjudication hearing at which the admissibility of respondent's statement to Detective Carrasquillo will be determined in accordance with the provisions of G.S. § 7B-2101.
In the instant case, Dr. Cooke testified on direct examination regarding C.C.'s account of the assault by respondent. Her physical examination did not reveal physical injury, abnormalities, or evidence of sexually transmitted disease. When asked to evaluate the exam together with the interview, Dr. Cooke testified as follows:
[PROSECUTOR]: And how did your findings on the physical exam compare with the interview that you had with [C.C.]. [DR. COOKE]: Its consistent because there _ often times physical evidence and history do not collaborate. So lots of times you don't find physical evidence even if there has been some penetration unless you can _ I mean, sometimes you will see tears and you will see scars and you will see some increase in anal tone, but that's not necessarily a given.
Respondent did not object to the introduction of this testimony. He argues on appeal that, by declaring the interview to be“consistent” with an exam that failed to show injury, Dr. Cooke's testimony “had the effect of vouching for [C.C.'s] credibility. . . .” We disagree.
Under N.C.G.S. § 8C-1, Rule 702 (2001), “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.” An expert witness may not attest to the victim's credibility, as he or she is in no better position than the jury to assess credibility. State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988) (“the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible”). However, otherwise admissible expert testimony is not rendered inadmissible merely because it enhances a witness's credibility. State v. Dick, 126 N.C. App. 312, 315, S.E.2d 88, 89 (1997) (“testimony based on the witness's examination of the child witness and expert knowledge . . . is not objectionable because it supports the credibility of the witness . . .”). An expert's opinion that sexual abuse definitely occurred is inadmissible absent a foundation showing that “the opinion expressed by [the expert] was really based upon [the expert's] special expertise, or stated differently, that [the expert] was in a better position than the jury to have an opinion on the subject. . . .” State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987). Therefore, an expert may not testify that a child “wassexually abused” when the expert's opinion rests entirely on the child's statements, unsupported by physical or other evidence. State v. Grover, 142 N.C. App. 411, 417, 543 S.E.2d 179, 183, aff'd, 354 N.C. 354, 553 S.E.2d 679 (2001).
However, our appellate courts have generally upheld the admission of testimony from a medical expert in a sexual abuse case that her observations are “consistent with sexual abuse.” State v. Brothers, 151 N.C. App. 71, 77-78, 564 S.E.2d 603, 607-08 (2002) (physician properly permitted to testify that witness had vaginal scarring which the physician concluded was “consistent with sexual abuse”); see also State v. Aguallo, 322 N.C. 818, 820, 370 S.E.2d 676, 678 (1988) (doctor's testimony that physical examination was “consistent with” victim's earlier statements held “vastly different from” comments on victim's credibility). The North Carolina Supreme Court recently delineated the distinction between admissible expert testimony and opinions that simply attest to the witness's credibility. In State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002), the Court ruled:
In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim's credibility. However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.
(citations omitted) (citing Stater v. Hall, 330 N.C. 808, 818, 412 S.E.2d 883, 888 (1992); Aguallo, 322 N.C. at 822-23, 370 S.E.2d at678; State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987)).
In the present case, Dr. Cooke did not testify that the allegations in the juvenile petition were accurate, but only that her examination of C.C. was “consistent” with her interview of him. We conclude that the admission of this testimony was neither error nor plain error. This assignment of error is overruled.
(d) Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.
. . . .
(18) The sentence imposed was unauthorized at
the time imposed, exceeded the maximum
authorized by law, was illegally imposed, or
is otherwise invalid as a matter of law.
N.C.G.S. § 15A-1446(d)(18) (2001). We conclude that respondent's
argument raises the issue of whether his sentence “was illegallyimposed, or is otherwise invalid as a matter of law.” In re
Allison, 143 N.C. App. 586, 592, 547 S.E.2d 169, 172 (2001)
(citing G.S. § 15A-1446(d)(18)). Accordingly, the issue is
properly before us, notwithstanding respondent's failure to object
at the dispositional hearing. Id. (noting that “certain errors may
be reviewed on appeal despite the absence of an objection,
exception or motion made in the trial court”).
As a condition of probation, the trial court required the
following:
27. That the juvenile participate in and
successfully complete sexual offender specific
evaluation/treatment program. Participation
is defined as attendance at all meetings,
admission of responsibility for offense and
progress toward reasonable treatment goals.
(emphasis added). During the disposition hearing, the trial court
underscored this point:
THE COURT: All right, at this point then, I'm
going to place [respondent] on supervised
probation for 12 months initially. I order
that he not have any contact with [C. C.] . .
. [and that] he also participate and complete
the sex offender specific evaluation and
treatment program by the Wayne County Mental
Health Center. And participation is defined
as attendance of all meetings, admission of
responsibility for offense and progress toward
reasonable treatment goals.
(emphasis added). After the court stated the other probationary
conditions, the Court Counselor asked to be heard:
MR. PERRY: May I ask something, Your Honor?
THE COURT: Yes, sir.
MR. PERRY: I just think it's important that
[respondent] and his father understand that
one violation he can end up back here and therecommendation will be training school. . . .
He needs to be at every meeting and everything
needs to be done. . . .
(emphasis added).
The Fifth Amendment provides in relevant part that no person
“shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amd. V. Likewise, the North Carolina
Constitution protects “every person charged with crime” from being
“compelled to give self-incriminating evidence.” N.C. Const. art.
I, § 23. The privilege against self-incrimination extends to
juveniles charged with delinquency. See N.C.G.S. § 7B-2405(4)
(2001).
The U.S. Supreme Court's decision in Minnesota v. Murphy, 465
U.S. 420, 79 L. Ed. 2d 409 (1984), the leading relevant case,
“makes clear that the state cannot make waiver of the privilege
against self-incrimination a condition of probation.” State v.
Eccles, 877 P.2d 799, 800 (Ariz. 1994). However, neither the
United States Supreme Court nor the North Carolina Supreme Court
has addressed the precise issue before this Court: whether a court
can condition probation on the probationer's admitting guilt of the
offense for which he was convicted, when the offender has testified
at trial and denied culpability.
Some courts have held that probation requirements like the one
in this case place respondent in a “classic penalty” situation.
See, e.g., State ex rel. Tate v. Schwarz, 654 N.W.2d 438, 441 (Wis.
2002) (probation revoked for “failure to cooperate with sex
offender treatment” based on defendant's “resistance to admittingsexual misconduct with the victim”: Court holds that “defendant .
. . cannot be subjected to probation revocation for refusing to
admit to the crime of conviction, unless he is first offered the
protection of use and derivative use immunity”); State v. Imlay,
813 P.2d 979, 985 (Mont. 1991) (stating “it is clear . . . the
defendant is being subjected to a penalty that he would not
otherwise be subjected to if he would simply admit his guilt”),
cert. granted sub nom. Montana v. Imlay, 503 U.S. 905, 117 L. Ed.
2d 489, cert. dismissed, 506 U.S. 5, 121 L. Ed. 2d 310 (1992);
compare Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991) (probation
revocation impermissible where defendant pled guilty to reduced
sexual assault but refused to admit to aggravated sexual behavior
on which original charge was based). The “classic penalty” argument
sometimes is supported by concerns that a confession obtained
during therapy would be admissible if the defendant were retried
for the same offense, or could be the basis for a later prosecution
for perjury. See, e.g., Jonathan Kaden, Therapy for Convicted Sex
Offenders: Pursuing Rehabilitation Without Incrimination, 89 J.
Crim. L. & Criminology 347, 348-349 (Fall, 1998) (discussing, inter
alia, differing Fifth Amendment implications based upon whether
offender pleads guilty, and contrasting the difference in Fifth
Amendment implications between penalty contexts and ineligibility
for privileges circumstances); Brendan J. Shevlin, “Between the
Devil and the Deep Blue Sea”: A Look at the Fifth Amendment
Implications of Probation Programs for Sex Offenders Requiring
Mandatory Admissions of Guilt, 88 Ky. L.J. 485 (Winter, 1999-2000). Convincing arguments can also be advanced that a sentencing
court may require the convicted to admit guilt as a condition of
probation, without an associated constitutional violation. At
least one court has held that, in the context of a prison sex
offender treatment program, benefits can be denied to a prisoner
who “refuses to make statements necessary for his rehabilitation,
as long as their denial is based on the prisoner's refusal to
participate in his rehabilitation and not his invocation of his
privilege.” McMorrow v. Little, 109 F.3d 432, 436 (8th Cir. 1997).
See State v. Carter, 772 A.2d 326, 328 (N.H. 2001) (where
participation in sex offender therapy for prisoners is voluntary,
court holds that “the defendant is not being compelled to
incriminate himself: he may choose not to participate and thus not
admit any guilt. . . . Such a tactical choice does not rise to the
level of compulsion required for a Fifth Amendment violation.”);
see also, Gollaher v. United States, 419 F. 2d 520 (9th Cir. 1969),
cert. denied, 396 U.S. 960, 24 L. Ed. 2d 424 (State interest in
rehabilitation can override compulsory self-incrimination). We
conclude, however, that Murphy controls the outcome of the instant
case, and does not afford such an option: “[A] State may validly
insist on answers to even incriminating questions . . . as long as
it recognizes that the required answers may not be used in a
criminal proceeding [so that] . . . a probationer's 'right to
immunity as a result of his compelled testimony would not be at
stake.'” Murphy, 465 U.S. at 435, 79 L. Ed. 2d at 425 (quotingSanitation Men v. Comm'r of Sanitation, 392 U.S. 280, 284, 20 L.
Ed. 2d 1089, 1093 (1968)).
Moreover, since the time of the trial court's entry of a
disposition order, this Court decided In re Lineberry, __ N.C. App.
__, 572 S.E.2d 229 (2002). In Lineberry, as in the instant case,
the juvenile respondent was charged with commission of a sexual
offense and adjudicated delinquent following a hearing at which
respondent testified and denied his guilt. Id. The disposition,
like that before us, required the respondent to participate in, and
cooperate with, a treatment program for sex offenders. Id.
Following a subsequent motion for review, the juvenile was ordered
held in secure custody, in part because of his refusal during sex-
offender treatment to admit guilt of the underlying offense. Id.
at __, 572 S.E.2d at 231. This Court held:
In finding that juvenile's refusal to admit to
the offenses was a factor justifying his
continued custody pending appeal, the trial
court exposed juvenile to the classic penalty
situation of choosing between the privilege
against self-incrimination and prolonged
confinement. . . . Thus, the trial court's
conclusion that juvenile should remain in
custody pending appeal based on juvenile's
refusal to admit to the offense for which he
was adjudicated delinquent violated juvenile's
constitutional right against
self-incrimination.
Id. at __, 572 S.E.2d at 236. We find Lineberry's holding
functionally indistinguishable from the instant case and are
therefore bound by it. Accordingly, we hold that, on the specific
facts of this case, the trial court erred by specificallyconditioning respondent's probation on his express admission of the
underlying offense.
We are not unmindful of the therapeutic benefits that may be
obtained by accepting responsibility for one's actions. We
recognize, too, the trial court's need for flexibility in
fashioning appropriate dispositions for offenders. This need can
be especially compelling in the context of our juvenile courts.
Our holding does not prevent a court from revoking probation based
upon a probationer's overall failure to participate in a validly
required program simply because one aspect of the probationer's
refusal to cooperate is an unwillingness to admit responsibility
for his offense. The trial court may require a juvenile to
cooperate with his supervising court counselor and, if counseling
or psychological treatment is a part of the disposition, the trial
court may require a juvenile to complete a treatment regimen and
generally engage honestly in the counseling process, without
violating the U.S. Constitution. See, e.g., Murphy at 436, 79 L.
Ed. 2d at 425, (probationer could be required “to appear and give
testimony about matters relevant to his probationary status”
provided the State “did not attempt to take the extra,
impermissible step” of requiring him “to choose between making
incriminating statements and jeopardizing his conditional liberty
by remaining silent”). Moreover, if respondent were granted use
immunity or “protected at least against the use of his compelled
answers and evidence derived therefrom in any subsequent criminal
case in which he is a defendant”, id. at 426, 79 L. Ed. 2d at 418(quoting Lefkowitz v. Turley, 414 U.S. 70, 78, 38 L. Ed. 2d 274,
282 (1973)), this would obviate the Fifth Amendment violation. In
the case sub judice, the record contains no indication that such
immunity was offered, or that respondent's admissions would be
excluded from a subsequent hearing. See Razor v. Com., 960 S.W.2d
472, 474 (Ky. App. 1997) (no threat of prosecution posed by
probationer's admission of guilt where State statute provided
“[a]ll information obtained in the discharge of an official duty by
any probation or parole officer shall be privileged and shall not
be received as evidence in any court”).
In summary, this case is reversed and remanded for a new
adjudication hearing at which the admissibility of respondent's
statement to a law enforcement officers will be properly
determined. If he is again adjudicated delinquent and placed on
probation, the trial court shall not include a condition of
probation that specifically requires respondent to admit guilt of
the underlying offense.
Reversed and remanded.
Judge WYNN concurring in part, dissenting in part.
Judge TIMMONS-GOODSON concurs.
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).
(See footnote 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.
Footnote: 1
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