State v. Miller , 281 N.C. 70 ( 1972 )

187 S.E.2d 729 (1972) 281 N.C. 70

STATE of North Carolina
v.
Ronald Lee MILLER.

No. 24.

Supreme Court of North Carolina.

April 12, 1972.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray for the State.

Donald K. Tisdale, Winston-Salem for defendant appellant.

BOBBITT, Chief Justice.

The assignments of error relating to the denial of defendant's motions for nonsuit have no merit. Uncontradicted evidence offered by the State tended to show that a young Negro male feloniously and burglariously broke into and entered the occupied home of Mrs. Styles during the night of December 20, 1970, with intent to commit the felony of rape. Too, Mrs. Styles's positive testimony, apart from corroborating circumstances, was amply sufficient to support a finding that defendant is the person who committed the crime.

Defendant excepted to and assigns as error (1) the admission of Mrs. Styles's testimony in which she identified defendant as the person who committed the crime, and (2) the admission of Sgt. Burke's testimony as to what occurred on February 9, 1971, at Western Electric, when Mrs. Styles identified one of the twelve photographs then shown her as the photograph of the young Negro male who committed the crime.

Defendant's objection to Mrs. Styles's identification testimony is based on his contention that her testimony was tainted because of illegality in the photographic identification on February 9, 1971. He contends the photographic identification was illegal because the procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968).

Before admitting the testimony, the court conducted two voir dire hearings, the first to consider the admissibility of Mrs. Styles's testimony and the second to consider the admissibility of Sgt. Burke's testimony. At these hearings, the only testimony, which was given in the absence of the jury, was that of Mrs. Styles and of Sgt. Burke, respectively. After each voir dire hearing, the court made findings of fact which are fully supported by uncontradicted evidence found by the court to be clear and convincing. In each instance, the court found that the identification procedure on February 9, 1971, was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." The court further found that Mrs. Styles's identification testimony before the jury was based solely on her observation of the person in her room on the night of December 20, 1970, completely independent of other factors.

Although defendant noted a general exception to the findings made by the court after each voir dire hearing, no exception or assignment of error is addressed to any specific factual finding or legal conclusion.

On February 9, 1971, defendant had not been arrested or charged with any criminal offense. The photographs were shown Mrs. Styles in the course of Sgt. Burke's investigation.

We conclude that defendant's objections to the testimony of Mrs. Styles and of Sgt. Burke were properly overruled and that assignments of error relating thereto have no merit.

Defendant excepted to and assigns as error the overruling of his objections to questions asked him on cross-examination as to whether he had been convicted of specific unrelated criminal offenses. In response, defendant testified he had been convicted of house breaking on August 27, 1967, and of mail fraud on an unspecified date.

For purposes of impeachment, a witness, including the defendant in a criminal case, is subject to cross-examination as to his convictions for crime. Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 279-280, 156 S.E.2d 265, 268-269 (1967), and cases there cited; State v. Williams, 279 N.C. 663, 669, 185 S.E.2d 174, 178 (1971).

Defendant contends the foregoing rule should not apply to the cross-examination of a defendant with reference to whether he had been found guilty of conduct committed by him while a juvenile which, if committed by an adult, would have constituted a conviction of crime. The question directly presented on this appeal is not whether an adult witness may be cross-examined with reference to convictions or adjudications of guilt of criminal conduct committed years before when he was a juvenile. Here the fifteen-year-old defendant was on trial for first degree burglary allegedly committed by him when he was fourteen. By electing to testify, defendant put in issue his credibility as a witness. The question is whether it was permissible to cross-examine a juvenile with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would be accurately denominated criminal offenses.

As a basis for his contention that the general rule should not apply, defendant quotes Sections 24 and 29(6), Article 2, Chapter 110 of the General Statutes, as these sections appear in Volume 3A (Replacement 1966). However, except for G.S. § 110-25.1 and G.S. § 110-39, Article 2 of Chapter 110 was rewritten by Section 1 of Chapter 911 of the Session Laws of 1969. The provisions formerly codified as Sections 24 and 29(6) no longer appear in Article 2 of Chapter 110. As set forth below, the system of "Juvenile Courts" formerly provided by Article 2 of Chapter 110 has been superseded.

Article 23, Chapter 7A, as now codified in Volume 1B [Replacement 1969) of the General Statutes of North Carolina, was rewritten by Section 2 of Chapter 911 of the Session Laws of 1969. Article 23 is captioned, "Jurisdiction and Procedure Applicable to Children." It vests exclusive, original jurisdiction over any case involving a child in the district court judge and provides in detail for procedures in the district court in cases involving children.

Defendant calls attention to this provision of G.S. § 7A-277: "The purpose of this article is to provide procedures and resources for children under the age of sixteen years which are different in purpose and philosophy from the procedures applicable to criminal cases involving adults." Although not referred to by defendant, we take notice that G.S. § 7A-287, which provides for maintaining "a complete record of all juvenile cases," contains this sentence: "An adjudication that a child is delinquent or undisciplined shall not . . . be considered as conviction of any criminal offense."

In State v. Alexander, 279 N.C. 527, 184 S.E.2d 274 (1971), the defendant, then twenty-one, testified at his trial for armed robbery. When cross-examined with reference to a prior conviction, he answered: "When I was a juvenile, in 1965, I was convicted of store breaking and larceny." Justice Huskins, for the Court, said: "Upon a charge of store breaking and larceny—a felony the punishment for which could be ten years—this defendant, even if only fifteen years old at the time, could have been processed as a juvenile or tried and convicted in the superior court. State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969). He said he had been convicted. His answer was competent for impeachment purposes." State v. Alexander, supra at 535, 184 S.E.2d at 280. Justice Huskins also said: "When a defendant in a criminal case takes the stand, he may be impeached by cross-examination with respect to previous convictions of crime, but his answers are conclusive and the record of prior convictions cannot be introduced to contradict him. State v. Sheffield, 251 N. C. 309, 111 S.E.2d 195 (1959); State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944). In a criminal case, this rule applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction." (Our italics.) State v. Alexander, supra at 535, 184 S.E.2d at 280. Although not necessary to decision in the Alexander case, the italicized statement is apposite to the case under consideration.

In the present case, the State's evidence tends to show that defendant committed the crime of first degree burglary as charged and also the crime of rape. Assuming it would be technically accurate to refer to violations of the criminal law committed by a person under fourteen years of age as adjudications rather than as convictions, the gist of defendant's testimony was that on prior occasions he had been found guilty of conduct which, if committed by an adult, would be criminal. Whether labeled adjudication or conviction would seem to make no difference in respect of its effect, if any, upon defendant's credibility as a witness. Under the circumstances of this case, we perceive no error in the admission of the testimony of defendant relating to previous violations of the criminal law for consideration by the jury solely as bearing upon his credibility as a witness.

Decisions from other jurisdictions cited by defendant have been considered. They are based wholly or in substantial part on the statute law of the jurisdictions involved. Suffice to say, they do not control decision herein.

We note that the present decision is in accord with decisions of the North Carolina Court of Appeals. See State v. Brown, 1 N.C.App. 145, 160 S.E.2d 508 (1968); State v. Jeffries, 3 N.C.App. 218, 164 S.E.2d 398 (1968).

Defendant's other assignments of error are formal and require no discussion.

Defendant having failed to show prejudicial error, the verdict and judgment will not be disturbed.

No error.