Bass, In re

• Decision Date: 01 October 1985
• Docket Number: No. 8414DC1153,8414DC1153
• Citation: 334 S.E.2d 779,77 N.C.App. 110
• Court: North Carolina Court of Appeals
• Parties: In re David Larry BASS.

Page 779

334 S.E.2d 779

77 N.C.App. 110

In re David Larry BASS.

No. 8414DC1153.

Court of Appeals of North Carolina.

Oct. 1, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

Alexander Charns, Durham, for respondent-appellant.

MARTIN, Judge.

We note at the outset that the record on appeal does not contain "a copy of the notice of appeal, or of an appropriate entry showing appeal taken orally" as required by Rule 9(a)(3)(viii) of the Rules of Appellate Procedure. Respondent's assignments of error relate only to the adjudication of his delinquency based upon the court's finding that he committed felonious larceny. In the exercise of our discretion, we will consider the assignments of error relating to the felonious larceny adjudication. However, respondent having failed to assign error to the court's finding of delinquency based upon his probation violation, we decline to review that portion of the complained-of order. Although we find technical error in the trial court's failure to conduct a probable cause hearing as required by G.S. 7A-609, we conclude that such error resulted in no prejudice to respondent. We affirm the trial court's order adjudicating respondent a delinquent juvenile pursuant to G.S. 7A-517(12).

Respondent first assigns error to the trial court's failure to conduct a probable cause hearing prior to the adjudicatory hearing at which he was found delinquent. G.S. 7A-609(a) provides in part:

The judge shall conduct a hearing to determine probable cause in all felony cases in which a juvenile was 14 years of age or older when the offense was allegedly committed unless counsel for the juvenile waives in writing his right to the hearing and stipulates to a finding of probable cause. (emphasis added).

In re Bullard, 22 N.C.App. 245, 206 S.E.2d 305 (1974), this court held that the provisions of former G.S. 7A-280 (repealed 1979), containing language similar to the present G.S. 7A-609(a), required the district court to conduct a preliminary hearing to determine whether there was probable cause to believe that the juvenile had committed the offense charged. We believe that the language of G.S. 7A-609(a) is clear and requires that a probable cause hearing be conducted in all cases in which a minor 14 years of age or older is charged with a felony before the court may transfer the case to the superior court for trial, or proceed with an adjudicatory hearing in the district court.

Respondent contends that the failure of the trial court to hold the probable cause hearing was prejudicial and a denial of due process of law. Although it was error for the trial court to fail to conduct a probable case hearing, we do not agree that the error was prejudicial to respondent. Our Supreme Court has held, with respect to adult offenders, that a failure to provide a criminal defendant with a probable cause hearing, as required by G.S. 15A-606(a), does not amount to a denial of due process and equal protection under either the North Carolina or United States Constitutions. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).

Even so, respondent argues he was prejudiced because his counsel was of the belief that the hearing conducted on 30 July 1984 was to determine probable cause and he was not aware until its conclusion that the prosecutor and the court considered the hearing to be adjudicatory. Respondent asserts that had his counsel known that the hearing was an adjudicatory hearing, he would have conducted his representation of respondent in a different manner, i.e., he would have presented evidence and sought to exclude inadmissible evidence, rather than using the hearing for discovery purposes. We reject this argument for the following reasons.

Respondent was taken into custody on 17 July 1984. On 23 July 1984, Judge Read conducted a detention hearing pursuant to G.S. 7A-577, at which both respondent and his counsel were present. At the conclusion of that hearing, Judge Read ordered that respondent remain in the Durham County detention home "until this matter can be heard." In open court he set the case for hearing the following Monday, 30 July, and instructed the clerk to issue subpoenas "for the hearing on the merit [sic] for next Monday as to this felony charge...." Respondent and his counsel were clearly placed on notice that the court intended to proceed with the adjudicatory hearing on 30 July and made no objection to the setting.

On 30 July, the case was called for hearing before Judge LaBarre. Respondent's counsel gave no indication that he was not prepared to proceed or that he had not been furnished with any requested discovery. He cross-examined the State's witnesses and presented a witness on behalf of respondent. At the conclusion of the hearing, Judge LaBarre found that respondent had committed the offense charged and adjudged him delinquent. A dispositional hearing was set for the following Monday, 6 August, before Judge Read. Even though Judge Read had expressly provided that the 30 July hearing was "on the merits," on 2 August respondent's counsel appeared before Judge LaBarre and informed him that counsel had not understood that the 30 July hearing was an adjudicatory hearing and that at the time of that hearing he had not been furnished with a copy of the statement of Rodney Burchett, a co-defendant, who had testified for the State. Judge LaBarre stated that he would strike the adjudication and permit respondent to present additional evidence. After consulting with the witnesses, who were present in court, respondent's counsel advised Judge LaBarre that he did not wish to present additional evidence.

A probable cause hearing is not conducted for the purposes of discovery; its purpose is to determine whether there is probable cause to believe that a crime has been committed and that respondent committed it. State v. Hudson, 295 N.C. 427, 245 S.E.2d 686 (1978). A further purpose of the probable cause hearing prescribed by G.S. 7A-609 is to determine whether the juvenile's case should be transferred to Superior Court for trial as an adult. See G.S. 7A-610. The State did not seek the transfer of this case to Superior Court. The court found beyond a reasonable doubt that respondent had committed the offense charged in the juvenile petition, applying a standard of proof substantially greater than probable cause.

We also reject respondent's argument that he was prejudiced because he had not been provided with a copy of Rodney Burchett's pretrial statement in advance of the 30 July hearing, as had been requested through discovery. Respondent's counsel cross-examined Burchett regarding the untruthfulness of his pretrial statement and the conditions of his plea arrangement. Burchett's pretrial statement was substantially more damaging to respondent than was his testimony at the hearing and respondent's counsel wisely limited his cross-examination of Burchett to an admission that he had lied, rather than bringing out the contents of the earlier statement. As the trial judge correctly observed, if respondent had not been provided with the requested statement, he should have requested a delay and sought an order, pursuant to G.S....