State v. Green

• Citation: 348 N.C. 588,502 S.E.2d 819
• Decision Date: 30 July 1998
• Docket Number: No. 519A96.,519A96.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Andre Demetrius GREEN.

502 S.E.2d 819

348 N.C. 588

STATE of North Carolina v. Andre Demetrius GREEN.

No. 519A96.

Supreme Court of North Carolina.

July 30, 1998.

Michael F. Easley, Attorney General by G. Patrick Murphy, Special Deputy Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Janine Crawley Fodor, Assistant Appellate Defender, Durham, for defendant-appellant.

Smith Follin & James by Seth R. Cohen, Greensboro; and Deborah K. Ross and Sandy S. Ma, Raleigh, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

LAKE, Justice.

This appeal presents for determination two separate but interrelated questions: first, whether the procedures by which juvenile court judges transfer cases to superior court are adequately protective of the due process rights of juveniles; and, if so, whether the sentencing of a thirteen-year-old, after such transfer and conviction, to a mandatory term of life imprisonment for first-degree sexual offense constitutes cruel and unusual punishment.

The defendant, Andre Demetrius Green, was thirteen years old on the date the crimes in this case were committed. On 28 July 1994, defendant was charged in juvenile petitions with first-degree rape and first-degree burglary, and on 9 August 1994, defendant was charged in a juvenile petition with first-degree sexual offense. Upon the State's motion to transfer the charges to superior court, District Court Judge Joyce A. Hamilton held a probable-cause hearing on 18 August 1994 pursuant to N.C.G.S. §§ 7A-608 to -612 and determined that probable cause existed and granted the State's motion for transfer. Defendant filed a notice of appeal and a petition for writ of mandamus to the Court of Appeals. The State submitted a motion to dismiss the appeal as interlocutory. On 24 January 1995, the Court of Appeals dismissed the appeal as interlocutory and denied defendant's petition.

At the probable-cause hearing, a juvenile court psychologist who examined the defendant prior to the hearing testified defendant came from a home where his father was an alcoholic and cocaine abuser who provided no support for the family and had little contact with defendant as a child. Defendant's father also viewed pornographic material in the home, although there was no stated knowledge whether defendant had been exposed to it. Defendant had a history of assaultive behavior during both the past year and throughout his childhood. This was often a reaction to teasing he received about his speech impediment. The psychologist testified defendant had underlying neurological problems that made him more impulsive than other juveniles his age. Defendant admitted to the psychologist that he had a "very bad temper." However, defendant denied to the psychologist having assaulted the victim, notwithstanding being confronted with contradictions in his story.

In her order for transfer, the district court judge cited the following as reasons for adjudging that the best interests of the juvenile and the State would be served by transfer to superior court:

-[The] serious nature of the offenses;

-[The] victim [was] essentially a stranger to the juvenile;

-[The] community's need to be aware of & protected from this serious type of criminal activity;

-[The] juvenile has a history of assaultive behavior (fights in school) & juvenile acknowledges he had a very bad temper;

-strong evidence of probable cause presented based on testimony from victim and juvenile's confession to law enforcement.

Defendant was indicted on 13 September 1994 for all of the offenses alleged in the juvenile petitions. He was tried to a jury at the 24 January 1995 Criminal Session of Superior Court, Wake County, Judge Narley L. Cashwell presiding. The jury found defendant guilty of attempted first-degree rape, first-degree burglary, and first-degree sexual offense. The trial court sentenced defendant as a repeat offender and entered sentences of life imprisonment for first-degree sexual offense, six years' imprisonment for attempted first-degree rape to run concurrently with the life sentence, and fifteen years' imprisonment for first-degree burglary to run consecutively following the life sentence.

Defendant appealed to the Court of Appeals. In a unanimous opinion, the Court of Appeals found no error. Defendant is before this Court on a notice of appeal of a constitutional question. His petition for discretionary review as to additional issues was denied on 6 March 1997, as was the State's motion to dismiss the appeal.

The evidence at trial tended to show that for approximately six weeks prior to the night of 27 July 1994, the victim experienced repeated harassment from someone ringing her doorbell and banging on her doors and windows. The victim, a twenty-three-year-old mother of one, lived with her twenty-month-old son in an apartment in Fuquay-Varina. She kept a golf club beside her bed as a weapon due to the recent harassment. On the night of 27 July 1994, the victim and her son were asleep in the same bed when a banging at the back door awakened her. She immediately called 911 for help and was on the phone with the 911 operator when she heard glass break on the back door. Defendant entered the victim's bedroom brandishing the handle from a mop and knocked the telephone from her hand. Defendant and the victim swung their respective weapons simultaneously. Both the golf club and the mop handle broke upon impact. Defendant then pulled the phone cord from the wall and knocked the victim onto the bed. He slapped her and told her, "shut up, b___ h."

As the victim pleaded with defendant not to hurt her son, defendant told her he was going to "f___ [her]," and he pulled down her panties and forced her to the floor. Defendant pulled the victim's hair, slapped her several times and told her to spread her legs as he attempted to remove her shirt. Defendant then placed himself on top of the victim. During the assault, defendant fondled the victim's breasts, performed oral sex upon her, penetrated her vagina with his penis once or twice and inserted a finger in her vagina and anus. In the process, defendant told the victim he was going to "rip her insides out." Defendant only ceased his attack when the victim told him she thought she heard the police. As the police were entering the back door, defendant escaped through the front door. In addition to the sexual assault, the victim suffered bruises and blood clots in her eyes as well as a scar on her face where she was cut.

Two witnesses, one who gave a description matching defendant's characteristics and one who knew defendant, saw defendant emerge from the victim's apartment after the arrival of the police. The victim picked defendant's picture out of a possible suspects book containing over one hundred photographs and identified defendant in open court as her assailant. Further, defendant gave a statement to police admitting to his sexual assault of the victim.

I. Due Process

In his first assignment of error, defendant contends that N.C.G.S. § 7A-610 violates his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. Defendant asserts section 7A-610 is unconstitutionally vague because it provides no meaningful guidance to juvenile court judges, resulting in arbitrary and discriminatory decisions regarding which juveniles to transfer to superior court. We find defendant's argument to be without merit.

Section 7A-610 provides in applicable part:

(a) If probable cause is found and transfer to superior court is not required by G.S. 7A-608, the prosecutor or the juvenile may move that the case be transferred to the superior court for trial as in the case of adults. The judge may proceed to determine whether the needs of the juvenile or the best interest of the State will be served by transfer of the case to superior court for trial as in the case of adults. When the case is transferred to superior court, the superior court has jurisdiction over that felony, any offense based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan of that felony, and any greater or lesser included offense of that felony.

N.C.G.S. § 7A-610(a) (1995) (emphasis added). The decision to transfer a juvenile's case to superior court lies solely within the sound discretion of the juvenile court judge and is not subject to review absent a showing of gross abuse of discretion. In re Bunn, 34 N.C.App. 614, 615-16, 239 S.E.2d 483, 484 (1977).

It is an essential element of due process of law that statutes contain sufficiently definite criteria to govern a court's exercise of discretion. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972). As stated by the Supreme Court, "[d]iscretion without a criterion for its exercise is authorization of arbitrariness." Brown v. Allen, 344 U.S. 443, 496, 73 S.Ct. 397, 441, 97 L.Ed. 469, 509 (1953). In construing whether a statute contains sufficient criteria to avoid being unconstitutionally vague, this Court applies well-established rules of statutory construction:

In passing upon the constitutionality of the statute, we begin with the presumption that it is constitutional and must be so held unless it is in conflict with some constitutional provision of the State or Federal Constitutions. A well recognized rule in this State is that, where a statute is susceptible to two interpretations—one constitutional and one unconstitutional—the Court should adopt the interpretation resulting in a finding of constitutionality.

Criminal statutes must be strictly construed. But, while a criminal statute must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. The intent of the legislature controls the

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