Matter of Berry

235 S.E.2d 278 (1977) 33 N.C. App. 356

In the Matter of Ralph BERRY and Abraham Wallace.

No. 7627DC1046.

Court of Appeals of North Carolina.

June 1, 1977.

Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. John R. B. Matthis and Associate Atty. Rebecca R. Bevacqua, Raleigh, for the State.

Larry B. Langson, Asst. Public Defender, Gastonia, for the 27th Judicial District, for respondent-appellants.

HEDRICK, Judge.

Each respondent contends Judge Bulwinkle erred in allowing Officer Posey to testify as to statements made to him by the respondents with respect to the damage done to the property on New Castle Drive. Before the statements were allowed into evidence, the court conducted a voir dire to determine whether the statements were voluntarily and understandingly made. Upon voir dire Officer Posey testified that he explained to each respondent his rights under the Miranda decision and enumerated his rights from a "rights form." Each stated that he understood his rights and signed a written waiver thereof. Berry's mother and Wallace's father signed the written waivers. Wallace offered no evidence on voir dire, but Berry testified on voir dire on his own behalf. Berry acknowledge that at the time he was questioned by Officer Posey he was advised of his rights and signed a written waiver of his rights; however, while admitting that he stated to Officer Posey that he understood his rights at the time he was questioned by him, Berry equivocally testified that he in actuality did not understand all of his rights.

Wallace argues that his statements were inadmissible because the court failed to make findings of fact as to whether his statements were freely, understandingly, and voluntarily made, and that the evidence on voir dire revealed that he did not orally waive his rights. The uncontroverted voir dire testimony of Officer Posey that he advised Wallace of his rights, that Wallace stated that he understood them, and that Wallace and his father signed the written waiver form is sufficient to support the trial judge's admission of Wallace's statements into evidence, State v. Lock, 284 N.C. 182, 200 S.E.2d 49 (1973), even though the trial court failed to make specific findings that such statements were freely, understandingly and voluntarily made. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

Berry contends the court erred in admitting his statements to Officer Posey into evidence because it failed to make specific findings after voir dire that his confession was understandingly and voluntarily made. He argues that he offered evidence on voir dire that he did not understand his rights, and, therefore, it was incumbent upon the trial judge to resolve the conflicts in the evidence by appropriate findings. Assuming arguendo that Berry's equivocal testimony on voir dire was sufficient to raise an issue of whether he understood his rights, we are of the opinion that the trial court's finding that, ". . . the juvenile Ralph Berry was apprised of his rights, and was familiar with his rights at the time of the discussion with Officer Posey," is sufficient under the circumstances of this case to support the order permitting Berry's statements into evidence.

We have carefully considered respondents' remaining assignments of error relating to the adjudicatory hearing and find them to be without merit. We hold the respondents had a fair hearing free from prejudicial error and the orders adjudicating each respondent to be a "delinquent child" will be affirmed.

G.S. 7A-286(4) sets forth the policies to be considered in designing the appropriate disposition of juveniles who have been adjudicated to be delinquent or undisciplined, and then provides,

"After considering these policy objectives, the court may:

b. Place the child on probation for whatever period of time the court may specify, and subject to such conditions of probation as the court finds are related to the needs of the child and which the court shall specify, under the supervision of the juvenile probation officer; . . ."

G.S. 7A-285 in pertinent part provides, "In all cases the court order [adjudication or disposition order] shall be in writing and shall contain appropriate findings of fact and conclusions of law."

Having adjudicated that the respondents were delinquent children, the court clearly had authority to place them on probation for six months on condition that they remain of general good behavior, report to the probation officer, attend school, adhere to a curfew, and not associate with "anyone of questionable character or who is on probation." The record in these cases demonstrates that these conditions are fair and reasonable, relate to the needs of the children, and are calculated to promote the best interest of the children in conformity with the avowed policy of the State in its relation with juveniles. Furthermore, these conditions are sufficiently specific to be enforced. However, it is our opinion that the special condition that each respondent pay $666.50 to Triangle Realty as restitution for damage is void and unenforceable. The record does not reveal, and the court made no finding of fact from which it can be determined that such a condition is fair and reasonable, relates to the needs of the children, tends to promote the best interest of the children, or is in conformity with the avowed policy of the State in its relation to juveniles. We are not unmindful of the rights of the injured parties in such cases, (See G.S. 1-538.1) but a requirement that a juvenile make restitution as a condition of probation must be supported by the record and appropriate findings of fact which demonstrate that the best interest of the juvenile will be promoted by the enforcement of the condition. In these cases the court made no finding with respect to the amount of damage to the real property. Indeed, there is no evidence in this record, other than the allegation in the petition, as to the amount of the damage. Furthermore, the court made no finding, and the evidence is vague as to precisely how much of the damage was attributable to the conduct of each respondent. While, as we stated before, the evidence and the findings made by the trial court are sufficient to support the adjudication, we are of the opinion, and so hold, that the record and the findings are not sufficient to support the condition of probation that the respondents make restitution by the payment of $666.50 each. Therefore, the disposition order is modified by striking the sixth condition of probation in the disposition orders. Except as specifically modified, the disposition orders will be affirmed.

Modified and affirmed.

MORRIS and ARNOLD, JJ., concur.